American National Can Co.

National Labor Relations Board - Board Decisions

Sep 30, 1999

329 N.L.R.B. 389 (N.L.R.B. 1999)

MACHINISTS LODGE 160 (AMERICAN NATIONAL CAN CO.) 389
International Association of Machinists and Aero-
space Workers, District Lodge No. 160 (Ameri-
can National Can Company) and International
Association of Machinists and Aerospace Work-
ers, Local Lodge No. 79 (American National Can
Company) and Keith Zurn and Marjorie Zurn.
Case 19–CB–7970
September 30, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND HURTGEN
Upon a charge and an amended charge filed by Keith
Zurn and Marjorie Zurn on, respectively, September 9
and September 30, 1996, the General Counsel of the Na-
tional Labor Relations Board issued a complaint on April
30, 1997, against the Respondents, International Associa-
tion of Machinists and Aerospace Workers, District
Lodge No. 160 (District 160) and Local Lodge No. 79
(Local 79), alleging that the Respondents have engaged
in certain unfair labor practices affecting commerce
within the meaning of Section 8(b)(1)(A) and Section
2(6) and (7) of the National Labor Relations Act. A copy
of the complaint and notice of hearing was served on
each of the Respondents. The Respondents filed a timely
answer and amended answer denying the commission of
any unfair labor practices.
On October 24, 1997, the Charging Parties, the Re-
spondents, and the General Counsel filed a stipulation of
facts and a motion to transfer proceeding to the Board.
They agreed that the charges, complaint, answers, and
the stipulation of facts constitute the entire record in this
case, and that no oral testimony is necessary or desired
by any of the parties. The parties waived a hearing, the
making of findings of fact, conclusions of law, and the
issuance of a decision by an administrative law judge.
On January 21, 1998, the Executive Secretary, by direc-
tion of the Board, issued an order approving the stipula-
tion, and transferring the proceeding to the Board.
Thereafter, the General Counsel and the Charging Parties
filed briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
On the entire record in the case, the Board makes the
following
FINDINGS OF FACT
I. JURISDICTION
The Employer, American National Can Company, a
corporation, with a place of business in Kent, Washing-
ton, is engaged in the business of manufacturing alumi-
num beverage containers. The Employer, in the 12
months prior to the issuance of the complaint and in the
course and conduct of its business operations, had gross
sales of goods and services valued in excess of $500,000.
The Employer, in this same period, sold and shipped
goods or provided services from its facilities within the
State of Washington to customers located outside the
State of Washington, or sold and shipped goods or pro-
vided services to customers within Washington State,
which customers were themselves engaged in interstate
commerce by other than indirect means, of a total value
in excess of $50,000. The Employer, during this same
time period in the course of its business, purchased and
caused to be transferred and delivered to its facilities
within the State of Washington goods and materials val-
ued in excess of $50,000 directly from sources outside
Washington, or from suppliers within Washington, which
in turn obtained such goods and materials directly from
sources outside Washington. We find that American
National Can Company is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act. We further find that the Respondents are labor
organizations within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The issues presented in this proceeding are whether the
Respondents violated Section 8(b)(1)(A) of the Act by:
(1) maintaining and applying to newly resigned employ-
ees a 1-month window period for the invocation of their
rights under Communications Workers v. Beck, 487 U.S.
735 (1988); and (2) maintaining and applying that por-
tion of their Beck procedure which provides that dues
reductions will not become effective, for unit members
who file Beck objections during the 1-month October
window period, until the following January 1.
A. Facts
The Respondent Local 79, affiliated with the Interna-
tional Association of Machinists and Aerospace Workers
(IAM), is the collective-bargaining representative of a
unit of employees of the Employer. Since at least April
1, 1993, Local 79 and the Employer have maintained and
enforced collective-bargaining agreements that included,
inter alia, a union-security provision.
Since at least July 1, 1996, the Respondents and the
IAM have maintained a procedure (Beck procedure) gov-
erning the reduction in fees and dues for nonmember
employees covered by a union-security provision who
object under Communications Workers v. Beck to the
payment of dues and fees for nonrepresentational activi-
ties. Since 1989, the IAM has published the complete
Beck procedure in its magazine, the IAM Journal, once
each year. In 1995 and 1996, a copy of the IAM Journal
was mailed to the residence of each bargaining unit em-
ployee. The parties have stipulated that in establishing
the Beck procedure and publishing the annual notice in
the IAM Journal, the IAM acts as the agent of its affili-
ated local and district lodges, including the Respondents
Local 79 and District 160. The parties have further
stipulated that the Respondents and/or the IAM expend
329 NLRB No. 41
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 390
the moneys collected from its members, and from non-
member employees who have not met the requirements
of the Beck procedure, on both representational and non-
representational activities.
The Beck procedure contains the following window
period requirement:

Beginning on October 1, 1996, and ending on
October 31, 1996, or during the first 30 days in
which an objector is required to pay fees to the un-
ion, that objector may request that his/her monthly
agency fee payment be reduced so that he/she is only
bearing the costs of representational activities.

The Beck procedure further provides that the reductions will
not become effective or apply to objectors’ fees and dues
until January 1, 1997.
The parties have stipulated that, for unit members who
resigned their union membership and registered a Beck
objection during the October 1–31, 1996 window period,
the amount of fees required pursuant to the union-
security provision was reduced effective with the pay-
ments due after January 1, 1997. In July 1996, however,
19 unit employees advised the Respondents in writing of
their desire to resign union membership, to become “pro-
tected by financial core status” as defined in Beck, to
have any dues owed to them returned, and to be charged
reduced fees pursuant to Beck. In response, the Respon-
dents notified the 19 individuals in writing that their res-
ignations had been accepted, and provided them with
information regarding their Beck rights. The parties have
stipulated that the Respondents did not recognize the
Beck objections of the 19 individuals who resigned and
objected in July 1996, because those objections were
made outside the October window period. The parties
have further stipulated that the Respondents did not grant
fee reductions to the 19 individuals, and that they were
obligated under the union-security provision to continue
paying full dues and fees until such time as they filed for
objector status during the October window period.
B. Contentions of the Parties1
1. The General Counsel
The General Counsel argues that the Board in Califor-
nia Saw & Knife Works2 held unlawful the requirement
that Beck objections be filed during a window period, as
applied to employees who resign their union membership
after the expiration of the window period. The General
Counsel asserts that the Respondents here have applied a
window period substantially similar to the window pe-
riod found unlawful in California Saw & Knife Works.
The General Counsel further contends that the Respon-
dents have failed to show evidence establishing that the

1 The Respondents did not file a brief.
2 320 NLRB 224 (1995), enfd. sub nom. Machinists v. NLRB, 133
F.3d 1012 (7th Cir. 1998), cert. denied sub nom. Strang v. NLRB, 525
U.S. 813 (1998).
window period is an administrative necessity, without
which the Respondents’ Beck system would prove to be
unduly burdensome or costly.
2. The Charging Parties
The Charging Parties likewise argue that the Board’s
holding in California Saw & Knife Works is dispositive
of the complaint allegation that the Respondents’ win-
dow period is unlawful, because it fails to grant employ-
ees who resign their union membership a separate win-
dow period following resignation in which to file Beck
objections. They further argue that once a unit employee
resigns his or her union membership and registers a Beck
objection, the union must immediately charge the objec-
tor reduced fees. The Charging Parties assert that to do
so does not pose an administrative burden on the Re-
spondents or the IAM.
C. Discussion
The Supreme Court held in Communications Workers
v. Beck that the National Labor Relations Act does not
permit a collective-bargaining representative, over the
objection of dues-paying nonmember employees, to ex-
pend funds collected from them under a union-security
agreement on activities unrelated to collective-
bargaining, contract administration, or grievance adjust-
ment.3 In California Saw & Knife Works, supra, the
Board addressed a union’s obligations under Beck pursu-
ant to the well-established duty of fair representation
owed to all bargaining unit members. The Board held,
inter alia, that the requirement that Beck objections be
filed during a window period, solely as applied to bar-
gaining unit members who resign their union member-
ship following the expiration of the window period, ef-
fectively operates as an arbitrary restriction on the right
to resign from union membership. The Board explained:

A unit employee may exercise Beck rights only when
he or she is not a member of the union. An employee
who resigns union membership outside the window pe-
riod is thereafter effectively compelled to continue to
pay full dues even though no longer a union member,
and the window period in this circumstance operates as
an arbitrary restriction on the right to refrain from un-
ion membership and from supporting nonrepresenta-
tional expenditures. In light of our duty to uphold the
fundamental labor policy of ‘voluntary unionism’ em-
phasized by the Court in Pattern Makers [473 U.S. 95,
107 (1985)], we agree with the judge that the January
window period, as applied solely to employees who re-
sign their union membership after the expiration of the
window period, constitutes arbitrary conduct violative
of the [union’s] duty of fair representation.

3 487 U.S. at 752–754.
MACHINISTS LODGE 160 (AMERICAN NATIONAL CAN CO.) 391
A Board majority has recently reaffirmed the holding
in California Saw & Knife Works that a union violates its
duty of fair representation by failing—as in this case—to
grant employees who resign their union membership a
separate window period following resignation in which
to file a Beck objection. See Polymark Corp., 329 NLRB
No. 7 (1999); Steelworkers Local 4800 (George E. Fail-
ing Co.), 329 NLRB No. 18 (1999). We accordingly find
unlawful the requirement set forth in the Respondents’
Beck procedure that objections be filed during a 1-month
window period, solely with respect to the failure to grant
employees who resign their union membership a separate
window period following resignation in which to file a
Beck objection.
For those unit members who file Beck objections dur-
ing the 1-month October window period, the Respon-
dent’s Beck procedure provides that their dues reduction
will not become effective until the following January 1.
The Supreme Court has considered whether a union may
permissibly apply a fee objector provision under which
the union collects the full amount of dues from objectors,
and subsequently pays a rebate to the objectors. The
Court held that such a “charge and rebate” system was
not permissible, because it amounted to a forced loan
from the objecting employees to the union.4 Thus, once
a union “knows that a certain number of employees are
fee objectors . . . then it has no right to collect moneys
from those employees notwithstanding their objections,
and rebate the sums” at a subsequent time. Nielsen v.
Machinists Local 2569, 94 F.3d 1107, 1116 (7th Cir.
1996), cert. denied 520 U.S. 1165 (1997). There is no
dispute in this proceeding that the Respondents know the
number of employees who file Beck objections during
the October window period. The Respondents neverthe-
less continue to charge full dues to those objectors for at
least 2 months following the filing of their Beck objec-
tions. Moreover, the record is devoid of evidence that
the Respondents ever refund to objectors charged
amounts attributable to nonrepresentational expenses for
that period. On the record before us, the Respondents
advance no reason for the delay in making reductions
effective. We accordingly find that the Respondents
violated their duty of fair representation by requiring unit
members who register their objections during the Octo-
ber window period to wait until January to receive the
reduction in their dues.5
CONCLUSIONS OF LAW
1. American National Can Company is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.

4 Ellis v. Railway Clerks, 466 U.S. 435, 443–444 (1984).
5 Teamsters Local 435 (Mercury Warehouse), 327 NLRB 458 (1999)
(respondent violated Sec. 8(b)(1)(A) by continuing to charge employ-
ees for nonrepresentational activities after they filed a Beck objection).
2. Respondents International Association of Machin-
ists and Aerospace Workers, District Lodge No. 160, and
International Association of Machinists and Aerospace
Workers, Local Lodge No. 79, are labor organizations
within the meaning of Section 2(5) of the Act.
3. By maintaining and applying that portion of their
Beck procedure which prevents unit employees who have
resigned from the Union from filing Beck objections
within a reasonable time after their resignation, and by
maintaining and applying that portion of their Beck pro-
cedure which provides that dues reductions will not be-
come effective, for unit members who file Beck objec-
tions during the 1-month October window period, until
the following January 1, the Respondents have engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(b)(1)(A) and Section 2(6) and (7)
of the Act.
REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, we shall order them to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. We shall
order the Respondents to amend their Beck procedure to
clarify that: (1) bargaining unit employees who have re-
signed from the Union may file objections to the collec-
tion of fees for nonrepresentational expenses at any time,
or, at the option of the Union, within a reasonable period
specifically designated in the Beck procedure and not to
be less than 30 days, after the resignation is submitted;
and (2) dues reductions will become effective upon re-
ceipt of Beck objections from unit employees. We shall
further order the Respondents to recognize as objecting
nonmembers as of the effective date of their resignations,
the unit employees who resigned their union membership
and filed Beck objections in July 1996, and to accept
from those employees the reduced dues and fees for the
period since they registered their Beck objections. We
shall additionally order the Respondents to refund all
fees collected for nonrepresentational expenditures from
employees for the periods they should have been per-
fected Beck objectors, with interest computed in the
manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondents, International Association of Machinists
and Aerospace Workers, District Lodge No. 160, and
International Association of Machinists and Aerospace
Workers, Local Lodge No. 79, their officers, agents, and
representatives, shall
1. Cease and desist from
(a) Preventing employees in the American National
Can Company bargaining unit who have resigned from
the Union from filing objections to the payment of fees
for expenditures of the Union not germane to the collec-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 392
tive-bargaining process within a reasonable time after
their resignations.
(b) Collecting or attempting to collect fees from ob-
jecting nonmembers which are attributable to
nonrepresentational expenses.

(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Amend their Beck policy to clarify that: (i) bargain-
ing unit members who have resigned from the Union
may file objections to the collection of fees for nonrepre-
sentational expenses at any time, or, at the option of the
Union, within a reasonable period specifically designated
in the Beck procedure and not to be less than 30 days,
after the resignation is submitted; and (ii) dues reductions
will become effective upon receipt of Beck objections
from unit employees.
(b) Recognize as objecting nonmembers as of the ef-
fective date of their resignations, the unit employees who
resigned their union membership and filed Beck objec-
tions in July 1996, and accept from those employees re-
duced dues and fees for the period since they registered
their Beck objections.
(c) Refund, with interest, fees collected for nonrepre-
sentational expenditures from employees for the periods
they should have been perfected objectors.
(d) Within 14 days after service by the Region, post at
its business offices and meeting halls copies of the at-
tached notice marked “Appendix.”6 Copies of the notice,
on forms provided by the Regional Director for Region
19, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where
notices to employees and members are customarily
posted. Reasonable steps shall be taken to ensure that
the notices are not altered, defaced, or covered by any
other material.
(e) Sign and return to the Regional Director copies of
the notice for posting by the Employer, if willing, on its
premises where notices to employees are customarily
posted.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps the Respondents have taken to com-
ply.

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
MEMBER LIEBMAN, dissenting in part.
I find, contrary to the majority, that the requirement set
forth in the Respondents’ Beck1 procedure that Beck ob-
jections be filed during a window period does not unrea-
sonably restrict the right of employees to file Beck objec-
tions, and in no sense impairs their right to resign union
membership. Steelworkers Local 4800 (George E. Fail-
ing Co.), 329 NLRB No. 18 (1999) (Member Liebman,
dissenting); Polymark Corp., 329 NLRB No. 7 (1999)
(Members Fox and Liebman, dissenting). The Respon-
dents allow members to resign union membership at any
time. Indeed, the parties have stipulated that the Re-
spondents promptly accepted the July 1996 resignations
of the unit employees at issue in this proceeding. “The
fact that an employee may have to wait some period of
time after resigning from the union to obtain a reduction
in the fees [he or she] is charged as a nonmember may
make resignation less attractive to the employee at that
particular time, but that hardly means that the employee
is in any sense being compelled to remain a member of
the union against [his or her] will.” Polymark, slip op. at
5. (Emphasis in original.)
Further, any assessment of the validity of a window
period requirement must take into account unions’ le-
gitimate interests in administrative efficiency and sim-
plicity. The courts have considered such interests and
held that a union’s use of a window period in circum-
stances similar to those presented here does not violate
its duty of fair representation. See, e.g., Abrams v.
Communications Workers, 59 F.3d 1373, 1381–1382
(D.C. Cir. 1995); Nielsen v. Machinists Local 2569, 94
F.3d 1107, 1116 (7th Cir. 1996), cert. denied 520 U.S.
1165 (1997). The Seventh Circuit Court of Appeals in
Nielsen v. Machinists thus agreed with the union in that
case that the use of a window period was a “reasonable
administrative device that helps the union to process its
dues objector claims and to keep its annual budget
straight.” Id. at 1116. “Nothing in the NLRA or in Beck
confers a right to instantaneous action, regardless of the
administrative burden the union might bear in imple-
menting [Beck objections].” Id.
Accordingly, I reiterate my view, set forth in Polymark
Corp. and Steelworkers Local 4800 (George E. Failing
Co.), that the requirement that Beck objections be filed
during a window period such as at issue in this proceed-
ing, “fall[s] within a generous range of reasonableness”2
afforded unions under the duty of fair representation. I
would dismiss the complaint allegation that the Respon-
dents violated the Act by maintaining and applying to
newly resigned employees a 1-month window period for
the invocation of their Beck rights.
On a separate issue, I agree with my colleagues that,
once an employee has timely filed a Beck objection, a
1 487 U.S. 735 (1988).
2 Nielsen v. Machinists, supra at 1117.
MACHINISTS LODGE 160 (AMERICAN NATIONAL CAN CO.) 393
union may not continue to charge the employee for non-
representational activities undertaken by the union.3 Ac-
cordingly, I agree with the majority that the Respondents
violated their duty of fair representation by maintaining
and applying that portion of their Beck procedure which
provides that dues reductions will not become effective,
for unit members who file Beck objections during the 1-
month October window period, until the following Janu-
ary 1.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT prevent employees in the American Na-
tional Can Company bargaining unit who have resigned
from the Union from filing objections to the payment of
fees for expenditures of the Union not germane to the
collective-bargaining process within a reasonable period
after their resignations.

3 See, e.g., Teamsters Local 435 (Mercury Warehouse), 327 NLRB
458 (1999).
WE WILL NOT collect or attempt to collect fees from ob-
jecting nonmembers which are attributable to nonrepre-
sentational expenses.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of rights guaranteed you by
Section 7 of the Act.
WE WILL amend our Beck policy to make it clear that:
(i) bargaining unit members who have resigned from the
Union may file objections to the collection of fees for
nonrepresentational expenses at any time, or, at the op-
tion of the Union, for a reasonable period specifically
designated in the Beck procedure and not to be less than
30 days, after the resignation is submitted; and (ii) dues
reductions will become effective upon receipt of Beck
objections from unit employees.
WE WILL recognize as objecting nonmembers as of the
effective date of their resignations, the unit employees
who resigned their union membership and filed Beck
objections in July 1996, and accept from those employ-
ees reduced dues and fees for the period since they regis-
tered their Beck objections.
WE WILL refund, with interest, fees collected for non-
representational expenditures from employees for the
periods they should have been perfected objectors.

ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, DISTRICT LODGE NO.
160 AND LOCAL LODGE NO. 79