Machinists Local Lodge 2777 (L-3 Communications)

National Labor Relations Board - Board Decisions

Aug 27, 2010

355 N.L.R.B. 1062 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 174
1062
International Association of Machinists and Aero-
space Workers, AFL–CIO; and International
Association of Machinists and Aerospace Work-
ers, AFL–CIO, Local Lodge 2777 (L-3 Commu-
nications Vertex Aerospace LLC f/k/a L-3
Communications Aero Tech LLC f/k/a Vertex
Aerospace LLC f/k/a Raytheon Aerospace LLC)
and Robert Prime. Case 15–CB–5169
August 27, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER,
BECKER, PEARCE, AND HAYES
The sole issue presented in this case is whether the Un-
ions violated their duty of fair representation by requiring
the Charging Party, a nonmember objecting to supporting
activities of the Unions unrelated to collective bargaining
and contract administration under Communications
Workers v. Beck,1 to make his objection annually even
though he had informed the Unions in writing that he
wished to object on a continuing basis. We find on the
record before us that the Unions have failed to present a
legitimate justification for their annual renewal require-
ment as applied to the Charging Party sufficient to justify
even the modest burden the requirement poses on an in-
dividual seeking to make an objection. We accordingly
find that the requirement is arbitrary under the duty of
fair representation and, for that reason, that in imposing
it the Unions have violated Section 8(b)(1)(A) of the
Act.2 In so finding, we emphasize that we are not an-
nouncing a per se rule finding an annual renewal re-
quirement to be unlawful. Rather, we shall proceed on a
case-by-case basis, consistent with this opinion, to in-
quire into a union’s Beck procedures when they are chal-
lenged to determine whether the union has demonstrated
a legitimate justification for an annual renewal require-
ment or otherwise minimized the burden it imposes on
potential objectors. Further, although we are finding a
violation in this case, our remedial order will be prospec-
tive only, for the reasons discussed below.3

1 487 U.S. 735 (1988).
2 Member Pearce dissents from this holding and thus does not join
sec. III of this opinion, but joins Chairman Liebman and Member
Becker in secs. I, II, and IV.
3 On December 10, 2007, Administrative Law Judge Michael A.
Marcionese issued the attached bench decision. The Respondent filed
exceptions and supporting brief and the Charging Party filed an answer-
ing brief. The Charging Party filed cross-exceptions and supporting
brief, the Respondent filed an answering brief, and the Charging Party
filed a reply. The General Counsel filed a statement of position.
The Board has considered the decision and the record in light of the
exceptions, cross-exceptions, and briefs and has decided to affirm the
I.
International Association of Machinists and Aerospace
Workers, AFL–CIO, and International Association of
Machinists and Aerospace Workers, AFL–CIO, Local
Lodge 2777 (the Unions) are, jointly, the exclusive bar-
gaining representatives of a bargaining unit of the em-
ployees of L-3 Communications Vertex Aerospace LLC
(L-3). Charging Party Robert Prime is an employee of
L-3 and is in the bargaining unit. The Unions and L-3
have entered into successive collective-bargaining
agreements; each agreement has included a union-
security clause.
For some years, Prime had registered an annual Beck
objection with the Unions. In November 2003, Prime
informed the Unions, in writing, that he was objecting
for calendar year 2004, and that his objection should be
treated as continuing, from year to year, unless and until
he revoked it. In response, the Unions informed Prime,
in writing, that he could assert objector status for the
upcoming calendar year only. Citing their procedures,
which are published each year in the IAM’s magazine,4
the Unions stated that their established policy requires
objectors to renew their objections annually. Prime did
not, in fact, renew his Beck objection the following year.
In 2005, consistent with their published procedures, the
Unions treated Prime as a nonobjector required to pay a
fee equal to full union dues.
II.
In Beck, the Supreme Court held that the first proviso
to Section 8(a)(3) of the National Labor Relations Act
(NLRA)5 does not privilege a collective-bargaining rep-

judge’s rulings, findings, and conclusions as explained below and to
adopt the recommended Order as modified and set forth in full below.
4 In the magazine, the Unions provide all bargaining unit members
they represent annual notice of their rights under Beck, along with a
description of applicable procedures for processing Beck objections. In
relevant part, the description provides: “Objectors who choose to re-
new their requests for an advance reduction must do so annually in
compliance with the above-described procedures.”
5 The proviso reads:
Provided, That nothing in this Act [subchapter], or in any other statute
of the United States, shall preclude an employer from making an
agreement with a labor organization (not established, maintained, or
assisted by any action defined in section 8(a) of this Act [in this
subsection] as an unfair labor practice) to require as a condition of
employment membership therein on or after the thirtieth day
following the beginning of such employment or the effective date of
such agreement, whichever is the later, (i) if such labor organization is
the representative of the employees as provided in section 9(a)
[section 159(a) of this title], in the appropriate collective-bargaining
unit covered by such agreement when made, and (ii) unless following
an election held as provided in section 9(e) [section 159(e) of this title]
within one year preceding the effective date of such agreement, the
Board shall have certified that at least a majority of the employees
MACHINISTS LOCAL 2777 (L-3 COMMUNICATIONS) 1063
resentative, over the objection of nonmember employees,
to expend funds collected from the employees under a
union-security agreement on activities unrelated to col-
lective bargaining, contract administration, and grievance
adjustment. Rather, the Court held, the proviso permits
objectors to be required to pay a fee representing only the
portion of full union dues that the union expends on ac-
tivities related to collective bargaining and contract en-
forcement. 487 U.S. at 752–754. “Section 8(a)(3) per-
mits unions and employers to require only that employ-
ees pay the fees and dues necessary to support the un-
ion’s activities as the employees’ exclusive bargaining
representative.” Marquez v. Screen Actors Guild, 525
U.S. 33, 38 (1998).
In California Saw & Knife Works, the Board set forth
the principles that would guide its determination of
whether union dues-collection procedures lawfully im-
plement the prohibition established in Beck.6 The sole
aspect of the Unions’ Beck procedures challenged in this
proceeding is the requirement that objections be renewed
annually.
This case presents an issue of first impression for the
Board.7 We do not, however, approach this question
with a blank slate. Most important for present purposes,
the Board held in California Saw that the legality of un-
ion procedures designed to implement Beck is to be
measured using the duty-of-fair-representation standard.
320 NLRB at 230. See also Office Employees Local 29
(Dameron Hospital Assn.), 331 NLRB 48 fn. 1 (2000)
(reaffirming application of the duty-of-fair-representation
standard).

eligible to vote in such election have voted to rescind the authority of
such labor organization to make such an agreement.
6 320 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).
7 In California Saw, the Board considered a number of issues pre-
sented by Beck, but not the requirement of an annual objection. The
Board observed, however, that courts had approved the annual objec-
tion requirement under the NLRA, the Railway Labor Act (RLA), 145
U.S.C. Sec. 151 et seq., and in the public sector. 320 NLRB at 236 fn.
62. See Abrams v. Communications Workers, 59 F.3d 1373, 1381–
1382 (D.C. Cir. 1995) (NLRA); Kidwell v. Transportation Communica-
tions Union, 731 F.Supp. 192, 205 (D. Md. 1990), affd. in part and
revd. on other grounds, 946 F.2d 283 (4th Cir. 1991), cert. denied 503
U.S. 1005 (1992) (RLA); Tierney v. City of Toledo, 824 F.2d 1497,
1506 (6th Cir. 1987) (public sector). Just recently, the United States
District Court for the District of Maryland dismissed a claim that the
Unions’ annual renewal requirement, at issue in this case, violated the
duty of fair representation under the NLRA. See Gorham v. Machin-
ists, No. RWT 09cv2472 (Aug. 20, 2010). Subsequent to California
Saw, in cases arising in non-NLRA contexts, other courts have found
the annual renewal requirement to be unlawful. See Seidemann v.
Bowen, 499 F.3d 119, 125 (2d Cir. 2007) (public sector); Lutz v. IAM,
121 F.Supp.2d 498, 506–507 (E. D. Va. 2000) (RLA); Shea v. Machin-
ists, 154 F.3d 508, 517 (5th Cir. 1998) (RLA).
The Unions’ procedures for processing Beck objec-
tions—including the annual renewal requirement at is-
sue—are integral parts of the Unions’ administration of
the contractual union-security clause. See California
Saw, 320 NLRB at 234. The Supreme Court has long
held that the duty to fairly represent all bargaining unit
members extends to the administration as well as the
negotiation and enforcement of collective-bargaining
agreements. Air Line Pilots Assn. v. O’Neill, 499 U.S.
65, 77 (1991); Electrical Workers v. Foust, 442 U.S. 42,
47 (1979). These functions “inevitably” involve recon-
ciling the divergent interests of “individual employees
and classes of employees,” requiring discretionary
choices by the bargaining representative.8 Humphrey v.
Moore, 375 U.S. 335, 349 (1964), quoting Ford Motor
Co. v. Huffman, 345 U.S. 330, 338 (1953) (no breach of
duty by union agreement to contract amendment which
enhanced seniority for one group of employees and re-
sulted in layoffs for another group).9 Beck requires a
union administering a contractual union-security clause
to balance the interests of potential objectors in easily
registering their objection with the interests of the collec-
tive-bargaining unit as a whole in having the union se-
cure the resources necessary to vigorously perform its
statutory duties without unreasonable administrative bur-
dens or costs. California Saw, 320 NLRB at 230.10 This

8 Member Schaumber suggests that administration of a union secu-
rity provision is not a representational function because one purpose of
proper administration is to insure that objectors are not required to bear
the cost of activities unrelated to collective bargaining. But a union
negotiates a union-security clause precisely to insure it has the re-
sources needed to vigorously represent employees and, for that reason,
such a clause is a mandatory subject of bargaining. NLRB v. General
Motors Corp., 373 U.S. 734, 742–745 (1963); Rocky Mountain Hospi-
tal, 289 NLRB 1347, 1362 (1988); Service Employees Local 535
(North Bay Center), 287 NLRB 1223, 1225 (1988) (“Of course, union
security generally is a mandatory subject.”), rev. denied sub nom. North
Bay Development Disabilities Services v. NLRB, 905 F.2d 476 (D.C.
Cir. 1990), cert. denied 498 U.S. 1082 (1991).
9 Accord: Air Line Pilots Assn. v. O’Neill, supra, 499 U.S. at 81
(strike settlement was rational compromise between claims of two
groups of employees and “some form of allocation was inevitable”);
Vaca v. Sipes, 386 U.S. 171, 191–192 (1967) (individual employee has
no absolute right to have grievance take to arbitration).
10 Member Schaumber’s further suggestion that application of the
duty of fair representation standard involves improper “balancing” by
the Board is also misplaced. The standard respects the fact that a union
must often balance competing interests in representing the employees
in a bargaining unit and administering the contract, including a contrac-
tual provision such as the union-security clause at issue here. Should
notice be provided annually or every 6 months, should it be in a sepa-
rate document or contained in a larger publication, should requests for a
continuing objection be honored? These are questions of contract
administration inevitably involving a balancing of the interests of dif-
ferent employees in the bargaining unit and a union’s answers to those
questions are therefore appropriately reviewed using the duty of fair
representation standard.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1064
is precisely the type of discretionary trade-off subject to
the duty of fair representation. “The undoubted broad
authority of the union as exclusive bargaining agent in
the . . . administration of a collective bargaining contract
is accompanied by a responsibility of equal scope, the
responsibility and duty of fair representation.” Hum-
phrey v. Moore, supra, 375 U.S. at 342.
In his separate opinion, Member Schaumber argues
that the Board is wrong to apply the duty-of-fair-
representation standard in Beck cases, as it has beginning
with the seminal California Saw decision. No court has
ever questioned the Board’s well-established approach,
and we see no reason to depart from precedent today.
Nevertheless, our colleague would overrule California
Saw, in favor of an approach predicated on Sections
8(a)(3) and 8(b)(1)(A). The Board has previously re-
jected similar arguments in Office Employees Local 29
(Dameron Hospital Assn.), 331 NLRB 48, 48 fn. 1
(2000) (rejecting dissenting view of then-Member
Brame). In any case, even under the analytical frame-
work advocated by our colleague, the result here would
be the same. Under the circumstances, then, we engage
in no further discussion of this issue.11
A union breaches its duty of fair representation if its
actions affecting employees whom it represents are arbi-
trary, discriminatory, or in bad faith. Air Line Pilots
Assn. v. O’Neill, 499 U.S. 65, 67 (1991); Vaca v. Sipes,
386 U.S. 171, 190 (1967). The General Counsel did not
challenge the Unions’ annual renewal requirement in this
case as undertaken in bad faith, which would have re-
quired proof of fraud, or deceitful or dishonest action.
See Electrical Workers v. NLRB, 41 F.3d 1532, 1537
(D.C. Cir. 1994). The Unions’ decision to supply annual
notice of Beck rights in its magazine to all represented
employees, including those who previously received no-
tice of their right to object and did not do so, is, in our
view, indicative of good faith. If the Unions had been
seeking to minimize objections through procedural
means, they could lawfully have provided each employee
with notice of his or her rights only once. See California
Saw, 320 NLRB at 233 (notice is required only when a
union first seeks to obligate an employee to pay fees and
dues under a union-security clause). Instead, the Unions
gave all represented employees, those who had previ-
ously declined to interpose an objection and those who
had previously objected, notice and an opportunity to
object each year. Whether or not the Unions had hon-
ored requests for continuing objections, a system in

11 For the same reason, we refrain from addressing Member
Schaumber’s commentary with respect to the Board’s Beck jurispru-
dence in general. Achieving the legal changes he advocates would
require dramatic changes in Federal labor law and policy.
which notice was provided only once to each employee
rather than on an annual basis surely would have mini-
mized objections.
Nevertheless, the judge found that the Unions’ annual
renewal requirement was arbitrary and discriminatory
within the meaning of the duty of fair representation.
For the reasons set forth below, we agree with the
judge’s conclusion that the requirement as imposed in
this case is arbitrary, although we rest our conclusion on
different grounds, but we disagree with his conclusion
that the requirement was discriminatory.
III.
A union’s actions are considered arbitrary under the
duty of fair representation “only if, in light of the factual
and legal landscape at the time of the union’s actions, the
union’s behavior is so far outside a ‘wide range of rea-
sonableness’ as to be irrational.” Air Line Pilots Assn. v.
O’Neill, supra, 499 U.S. at 67, quoting Ford Motor Co.
v. Huffman, supra, 345 U.S. at 338. The wide range of
reasonableness affords the union the discretion to ac-
count for the conflicting interests of the employees it
represents. Humphrey v. Moore, supra, 375 U.S. at 349–
350. In applying the arbitrary standard here, we accord-
ingly consider the balance between the competing inter-
ests: the legitimacy of the union’s asserted justifications
for its procedures and the extent to which they burden
employees’ assertion of a Beck objection. See Abrams v.
Communications Workers, 59 F.3d 1373, 1381 (1995)
(finding annual renewal requirement not “unduly burden-
some”); Shea v. Machinists, supra, 154 F.3d at 515 (un-
ion’s justification for annual renewal requirement
weighed against the burden it imposes).12
The Unions advanced to the judge several rationales
for the annual renewal requirement. On appeal to the
Board, the Unions advance three justifications: the re-
quirement ensures that the Unions have valid addresses
in order to supply objectors with required financial in-
formation; it provides employees an opportunity to
change their mind about objecting; and it is reasonable in
light of favorable court decisions and the absence of a
contrary Board ruling.
Before analyzing these proffered rationales, we con-
sider the fact that the annual renewal requirement poses
some burden, albeit a modest one, on potential objectors.
Those individuals must send a statement of their objec-
tion to the Unions each year during the 1-month period
specified in the Unions’ procedure. While the simple

12 See California Saw, supra, 320 NLRB at 230 (“[w]hat is required
. . . is a careful balance between the competing interests involved”
which are “the individual, collective, and public policy interests that lie
at the core of the duty of fair representation”).
MACHINISTS LOCAL 2777 (L-3 COMMUNICATIONS) 1065
mailing of an objection poses a minimal burden, remem-
bering to do so is also a burden and, further, the failure to
remember engenders a burden of more import in this
case—loss of the opportunity to object for 11 months
(until the renewal period recurs). While the requirement
does not pose a significant burden, equivalent, for exam-
ple, to job loss, and has been viewed as de minimis by
some courts,13 we must ask whether the Unions have
articulated a legitimate justification for the imposition of
the burden, considering the wide range of reasonableness
accorded them under the duty of fair representation.
First, the Unions contend that the annual renewal re-
quirement assists them in maintaining correct addresses
for objectors, which, in turn, ensures that they supply
objectors with financial information as mandated by
California Saw.14 Under California Saw, a union must
apprise objectors of the percentage reduction in dues and
fees they will be accorded, the basis for the calculation,
and their right to challenge that calculation. 320 NLRB
at 233. The Unions assert that they incur considerable
cost in mailing these “hefty packets” of information and
that the annual renewal requirement insures that those
expenditures are not made in vain by insuring that the
packages are mailed to objectors’ correct address.
A union’s fulfillment of its obligations to supply ob-
jectors with information required under California Saw
is, without doubt, a legitimate objective, as is conserving
union funds.15 The Unions, however, conceded at trial
that they have alternative means for obtaining correct
addresses for both members and nonmembers. The Un-
ions acknowledged that they can obtain such information
from local lodges, and that the lodges produce monthly
reports forwarded to the International that include ad-
dresses for all bargaining-unit employees. Moreover, the
Unions, as the joint exclusive representative of all em-
ployees in the bargaining unit, have a right to obtain the
addresses of all unit employees from their employer.
See, e.g., River Oak Center for Children, 345 NLRB
1335, 1335 (2005) (“It is well established that the ad-
dresses . . . of bargaining unit employees are presump-
tively relevant for purposes of collective bargaining and
must be furnished upon request of the bargaining repre-
sentative).16 The Unions advance no argument that sug-

13 Nielsen v. IAM, 94 F.3d 1107, 1116–1117 (7th Cir. 1996). See
Abrams v. Communications Workers, supra, 59 F.3d at 1381.
14 The judge described this as the “primary” justification presented
by the Unions.
15 See California Saw, 320 NLRB at 243 (protecting individual Beck
rights “without compromising the collective interests of union members
in protecting limited funds”).
16 Alternatively, the Unions could simply have informed potential
objectors, like the Charging Party, that if they express a continuing
objection it is their obligation to inform the Unions of any change of
gests their administrative burdens or costs are less under
the Unions’ chosen method for insuring accurate ad-
dresses than under available, alternative methods. Nor
do the Unions assert that significantly greater efficacy is
achieved. These factors would be accorded weight in our
analysis if they were present and, in our view, would
readily justify the minimal burden imposed here.17 In
their absence, however, the Unions have not provided a
rational explanation for choosing among admittedly
available alternatives. See Marquez v. Screen Actors
Guild, supra, 525 U.S. at 46. (“A union’s conduct can be
classified as arbitrary only when it is irrational, when it is
without a rational basis or explanation.”)
Second, the Unions assert that the annual renewal re-
quirement affords objectors the opportunity to reconsider
their dissenting position in light of changed circum-
stances.18 Elements of a union’s Beck system necessarily
operate on an annual cycle because union expenditures
vary from year to year, and hence the amount a union
may charge objectors for representational expenses ordi-
narily changes each year.19 The judge found that the
amount the Unions charged objectors did, in fact, vary
considerably over prior years here. The financial infor-
mation annually supplied by unions to Beck objectors
reflects those changes. While those who object at any
given time have varying motivations for doing so, many
may indeed change their minds in light of such annual
changes in the amount objectors are charged or in the
purposes of the underlying union expenditures.20 “An
employee who previously objected may have a change of
heart and choose not to exercise his or her right to object
in future years.” Kidwell v. Transportation Union, 731
F.Supp. 192, 205 (D. Md. 1990), affd. in part and revd.

address so that the Unions can supply them with the required, annual
financial information. Such a system would certainly satisfy the Un-
ions’ obligation under California Saw even if some packets of financial
information do not reach their intended recipients. 320 NLRB at 233
(“we stress that the union meets that obligation as long as it has taken
reasonable steps to insure that all employees whom the union seeks to
obligate to pay dues are given notice of their rights”).
17 See California Saw, 320 NLRB at 230, 243; Neilsen v. IAM, 94
F.3d 1107, 1117 (7th Cir. 1996) (weight accorded to union’s legitimate
administrative needs).
18 This is the rationale accepted by the District Court for the District
of Maryland in its recent decision upholding the Unions’ annual re-
newal requirement. Gorham, supra, slip op. at 8.
19 See California Saw, supra, 320 NLRB at 239; Chicago Teachers
Union Local 1 v. Hudson, 475 U.S. 292, 307 fn. 18 (1986).
20 See Gilpin v. AFSCME, 875 F.2d 1310, 1313 (7th Cir. 1989) (de-
scribing objectors’ range of motives). We note, however, that in this
case, the Unions informed all represented employees prior to the objec-
tion period each year what percentage of full union dues the objectors
would be required to pay during the upcoming year (based on their
share of the cost of collective bargaining and related activities), but the
Unions supplied no further information concerning the underlying
calculations prior to employees’ decision whether to object.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1066
on other grounds, 946 F.2d 283 (4th Cir. 1991), cert.
denied 503 U.S. 1005 (1992). See also Gorham v. Ma-
chinists, No. RWT 09cv2472 (Aug. 20, 2010), slip op. at
8 (“It is reasonable, and entirely consistent with common
human experience, to believe that both nonmembers and
unions may alter their positions over time.”) The record
here includes general testimony of such changes of heart
by employees based, for example, on the successful reso-
lution of workplace disputes in their bargaining unit.21
The ability of objectors to change their position is not
meaningfully advanced by an annual renewal require-
ment, however. They are free to do so with or without
the requirement. The Unions place no impediment on
rescinding an objection, which, apparently, may be ac-
complished at any time. Affording employees the oppor-
tunity to change their mind is thus as easily accom-
plished under a system which honors a continuing objec-
tion of the type the Charging Party explicitly articulated
here—as under the Unions’ current system. In a system
of the former type, employees could be informed annu-
ally that they have a right to object or, if they have al-
ready made a continuing objection, to withdraw the ob-
jection.22 The Unions retain, under either approach, the
ability to attempt to persuade employees, through nonco-
ercive means, to become full members of the union.
California Saw, 320 NLRB at 233 fn. 51. We find no
rational relationship between the legitimate interest in
permitting employees to change their minds and requir-
ing annual renewal of expressly continuing objections in
this case.23

21 While such evidence does not support the Unions’ position that an
annual renewal requirement is justified because it affords employees an
opportunity to change their minds, it does suggest that employees do
change their minds.
22 As we indicated above, in Gorham, supra, slip op. at 8, the District
Court accepted this rationale, reasoning, “The IAM’s practice of peri-
odically auditing nonmembers’ current views helps to minimize stale
objections.” But as we explain, the Unions can “periodically audit[]
nonmembers’ current views” and accept expressly continuing objec-
tions.
23 The Unions also suggest that the legal requirement that they pro-
vide financial information to objectors each year, alone, justifies the
requirement of annual objection. Both the Court of Appeals for the
District of Columbia and Sixth Circuits were persuaded by this argu-
ment. Abrams, 59 F.3d at 1382; Tierney, 824 F.2d at 1506. The pur-
pose of the required disclosure of union expenditures, however, is to
provide objectors with sufficient information to allow them to decide
whether to challenge the union’s calculation of the amount of their
reduced fee. California Saw, 320 NLRB at 239. The fact that this duty
is imposed on unions on an annual basis (reflective of ordinarily annual
accounting practices) in no way suggests that it is reasonable for unions
to require annual objection from nonmembers in order to, among other
things, secure the rights to be provided with a copy of the financial
information as well as to challenge the union’s calculation of their fee.
Unions could honor nonmembers’ express request for a continuing
objection and still provide the nonmembers with the required financial
Finally, the Unions assert that the annual renewal re-
quirement is justified because, in maintaining the re-
quirement, they relied on court cases upholding similar
requirements under the NLRA.24 They further observe
that the Board in California Saw cited such cases in ex-
plaining that the General Counsel at that time did not
allege the requirement was unlawful. 320 NLRB 236 fn.
62. In fact, the General Counsel had specifically advised
that “a union can require nonmembers to file new objec-
tion . . . each year.” GC Memorandum 88-14 at 3 (Nov.
15, 1988). Accord: GC Memorandum 01-04 (April 6,
2001). Indeed, even in this case, the General Counsel
authorized complaint to issue in order “to give the Board
the opportunity to rule on the recurring issue” and pre-
sented both sides of the question to the Board in his
statement of position.25
The General Counsel’s exercise of prosecutorial dis-
cretion in California Saw regarding the annual renewal
requirement does not insulate it from subsequent scru-
tiny. Nor do the cases relied on by the Unions—to which
the Board was not a party—preclude our independent
assessment of the statutory question here. It is the Board
which is vested with the primary responsibility to estab-
lish national labor policy. NLRB v. Curtin Matheson
Scientific, Inc., 494 U.S. 775, 786 (1990).26 Having been
presented here with this issue for the first time, we scru-
tinize the record for a reasonable justification for the
Unions’ requirement, which we find lacking. While we
evaluate the Unions’ conduct “in light of the factual and
legal landscape at the time of the union’s actions,”27 prior
nonbinding precedent is not a substitute for a valid union
rationale for the annual renewal requirement. Accep-
tance of the alternative construction of the relevance of
the “legal landscape” advanced by the Union would
freeze duty-of-fair-representation jurisprudence and pre-
vent its evolution in light of changing circumstances and
developing views of desirable Federal labor policy.

information each year in order to enable them to challenge the union’s
calculation of their fee.
24 The Unions cite Abrams v. Communications Workers, supra, 59
F.3d at 1381–1382, and Price v. UAW, 722 F.Supp. 933, 938 (D. Conn.
1989), affd. 927 F.2d 88 (2d Cir. 1991), cert. denied 502 U.S. 905
(1991).
25 In addition, after the briefs were submitted in this case, the District
Court for the District of Maryland upheld the Unions’ annual renewal
requirement in Gorham, supra.
26 See id. at 787 (the Supreme Court will uphold a Board rule as long
as it is rational and consistent with the Act even if it would have formu-
lated a different rule).
27 Air Line Pilots Assn. v. O’Neill, supra, 499 U.S. at 67. The “legal
landscape” may be of more relevance in situations where they union
must assess the probability of success of various actions, such as pursu-
ing a case to arbitration.
MACHINISTS LOCAL 2777 (L-3 COMMUNICATIONS) 1067
Before the judge, the Unions also argued that an an-
nual renewal requirement relieved them of the burden of
construing the intentions of rank-and-file employees and,
additionally, of keeping track of the differing periods
during which employees might wish their objection to
continue. But even a system that requires annual renewal
leaves a union having to determine the intentions of em-
ployees based on possibly ambiguous, written instruc-
tions, i.e., asking did the employee wish to object or not?
Moreover, unions can minimize this burden by giving
employees clear instructions concerning what they need
to say to object and, alternatively, to make a continuing
objection.28
Our holding today does not suggest that the Unions
would have violated their duty of fair representation in
this case if they had limited employees’ options to three:
making no objection, making a simple objection (which
would be understood as continuing until the next annual
notice), and making a continuing objection. The duty of
fair representation does not require unions to honor ob-
jections for any period specified by a nonmember. Nor
does the duty require that unions assume that a nonmem-
ber desires an objection to be continuing if, after being
given clear instructions concerning how to express a con-
tinuing objection, the employee does not do so. Cf.
Blade-Tribune Publishing Co., 161 NLRB 1512, 1513
(1966) (authorization “cards signed more than 1 year
prior to the bargaining request are too stale to be counted
unless reaffirmed within 1 year”).29
Finally, we address the proposition, accepted by the
D.C. Circuit in Abrams, 59 F.3d at 1382, that the annual
renewal requirement properly rests on the bedrock
proposition established by the Supreme Court in Machin-
ists v. Street, 367 U.S. 740, 774 (1961), that dissent “is
not to be presumed—it must affirmatively be made
known to the union by the dissenting party.” 367 U.S. at
774. See also Chicago Teachers Union Local 1 v. Hud-
son, 475 U.S. 292, 306 fn. 16 (1986) (“The nonmember’s
‘burden’ is simply the obligation to make his objection
known.”); Abood v. Detroit Board of Education, 431
U.S. 209, 238 (1977); Railway Clerks v. Allen, 373 U.S.

28 In this case, for example, the Unions’ annual notice informed em-
ployees covered by the Railway Labor Act that they had “the following
choice: (1) they may follow the annual renewal procedure, or (2) they
may indicate in their [objection] letter . . . that they want their objection
to be treated as continuing in nature.”
29 Member Schaumber would require that unions consider objections
continuing even when, faced with a clear choice, employees elect not to
make a continuing objection. We reject such a conclusive presumption
in favor of continuing objections and hold only that when the Charging
Party expressed a desire to have his objection continue, the Unions
acted arbitrarily by not honoring that request under the facts of this
case. See Kidwell, supra at 205 (“objections are not to be presumed on
an on-going basis”).
113, 119 (1963). The difficulty with that rationale here,
however, is that the Charging Party not only made his
objection known, but expressly stated that he wished it to
be a continuing objection. It is self-evident that after a
nonmember expresses an objection, it must be honored
for some period of time. For the reasons we articulated
above, while it would be reasonable for a union to honor
an objection containing no express time period as con-
tinuing for only 1 year if the union has explained to po-
tential objectors the consequences of that form of objec-
tion, it is not reasonable on the record in this case for the
Unions to presume that employees who expressly state
that they wish their objection to be continuous no longer
object after 1 year.
For these reasons, we agree with the judge that the Un-
ions acted arbitrarily and thus violated their duty of fair
representation by not honoring the Charging Party’s ex-
press request that his objection be continuous.
IV.
The judge also concluded that the Unions’ actions
were discriminatory and thus, for that reason as well, a
breach of the duty of fair representation. Specifically,
the judge found that the union discriminated against po-
tential objectors by requiring that they object on an an-
nual basis while imposing no similar requirement on un-
ion members or employees who have authorized the em-
ployer to deduct their union dues or fees from their
wages. We disagree.
The duty of fair representation requires a union “to
serve the interests of all [unit] members without hostility
or discrimination toward any.” Vaca v. Sipes, supra, 386
U.S. at 177. A union is accordingly prohibited, when
acting as a statutory representative, from taking action
against an employee or group of employees based upon
considerations that are irrelevant, invidious, or unfair.
Miranda Fuel Co., 140 NLRB 181, 185 (1962), enf. de-
nied 326 F.2d 172 (2d Cir. 1963).
The Board may find discrimination within the meaning
of the duty of fair representation when a union’s conduct
is motivated by an employee’s lack of union member-
ship, disagreement with union policies, or opposition to
union leaders. See California Saw, 320 NLRB at 229 fn.
32. The Board reviews the evidence to determine
whether the General Counsel has established by a pre-
ponderance that the union’s conduct was motivated by
discriminatory reasons. Auto Workers Local 651 (Gen-
eral Motors Corp.), 331 NLRB 479, 479 (2000). Dis-
crimination under the duty of fair representation thus
“requires inquiry into the subjective motivation behind
union action.” Trnka v. Auto Workers, 30 F.3d 60, 63
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1068
(7th Cir. 1994).30 In Occidental Chemical Corp., 294
NLRB 623 (1989), for example, the union refused to
process grievances filed by nonmembers. In view of
evidence of the union’s hostility toward the nonmembers
and the union’s lack of a legitimate explanation, the
Board found a violation. Cf. Teamsters Local 101 (Al-
lied Signal), 308 NLRB 140 (1992) (the General Counsel
failed to establish that the union’s distribution of pro-
ceeds from an arbitration award was motivated by ani-
mus against nonmembers).
In sum, the Board considers whether employees have
been singled out for adverse treatment for prohibited
reasons or whether the union has demonstrated a legiti-
mate explanation for treating the employees differently.31
See Air Line Pilots Assn. v. O’Neill, supra, 499 U.S. at
81 (union conduct that is rational is not invidious dis-
crimination of the kind prohibited by the duty of fair rep-
resentation); Transit Union v. Lockridge, 403 U.S. 274,
301 (1971) (duty of fair representation “carries with it
the need to adduce substantial evidence of discrimination
that is intentional, severe, and unrelated to legitimate
union objectives”).
In this case, the General Counsel did not prove pro-
scribed discrimination for several reasons. First, there
was no evidence of animus. The judge found that there
is “no evidence in the record before me to indicate that in
adopting an annual renewal requirement . . . the union
was acting other than for what it perceived to be adminis-
trative purposes in carrying out its obligations under the
Beck law.” The International Union’s Assistant Secre-
tary testified at the hearing and explained the reasons
why the Unions required annual objection.32 While we
find those reasons unconvincing for the reasons ex-
plained above, there is no evidence in the record suggest-
ing they were a pretext for intentional discrimination or
suggesting any other improper motive on the part of the
Unions. More importantly, the Board has found dis-

30 See Steelworkers Local 2869 (Kaiser Steel Corp.), 239 NLRB
982, 982 (1978) (“[I]t is not every act of disparate treatment . . . which
is proscribed . . . but only those which [are] motivated by hostile, in-
vidious, irrelevant, or unfair considerations.”).
31 See, e.g., Communications Workers Local 3410, 328 NLRB 920,
922 (1999) (discriminatory refusal to process grievance established by
evidence of animus stemming from discriminatee’s internal union
political activities and union’s pretextual justifications); Oil Workers
Local 5-114 (Colgate-Palmolive Co.), 295 NLRB 742 (1989) (dis-
crimination found based on disparate treatment of nonmember concern-
ing grievance procedure; union’s contention that nonmember was pro-
vided with a substitute but equivalent grievance procedure was deemed
meritless); Auto Workers Local 417 (Falcon Industries), 245 NLRB
527 (1979) (discriminatory refusal to process grievance because of
personal animosity between business agent and potential grievant and
the union’s lack of a legitimate explanation from the union).
32 Apart from the assistant secretary’s testimony, there is no evi-
dence of subjective motivation in the record.
crimination against nonmembers unlawful only when a
union treats members and nonmembers differently in
regard to a matter in relation to which membership is
irrelevant. For example, in Plumbers Local 17, 224
NLRB 1262 (1976), the Board concluded that a union
operating an exclusive hiring hall violated the Act when
it imposed a requirement to affirmatively sign up for the
hiring hall on nonmembers but not on members. In that
case, membership was irrelevant to represented employ-
ees’ right to obtain employment through a contractually
privileged hiring hall. Thus, the Board held that a union
“is not entitled to differentiate between members and
nonmembers in its referral practices.” Id. at 1263. Here,
in contrast, membership is relevant to the administration
of the union-security provision, whose very purpose is to
require represented employees to become members of the
Unions (within 30 days after starting employment) or, in
accordance with Beck, to pay their share of the cost of
representation.
In other words, although the Unions have a duty to
fairly represent both members and nonmembers, non-
member employees who object and those who do not, in
relation to the clause and its administration, consistent
with Beck, members and nonmembers as well as objec-
tors and nonobjectors are not similarly situated, and the
Unions were thus free to design, indeed, they could not
avoid designing, different procedures applicable to each
category of employee. Members have no right to object
unless they resign or reduce their “membership” to its
financial core. In addition, the clause, construed to be
consistent with both Beck and California Saw, permitted,
indeed required, both the employer and the Unions to
consider nonmember employees nonobjectors, required
to pay a fee equal to full union dues, unless they affirma-
tively object. Thus, the question before us—what consti-
tutes a proper objection and, more specifically, under
what circumstances a union can require that nonmembers
renew their objection in order not to be responsible for
paying full union dues—simply has no application to
union members or nonobjectors.33

33 We similarly disagree with the judge’s conclusion that the annual
renewal requirement was discriminatory because the Unions imposed
no parallel requirement on employees who authorized the employer to
deduct dues or fees from their wages. Collectively bargained checkoff
provisions ordinarily provide both union members and nonmember
objectors with a convenient means of satisfying their obligations to
their union representative and nothing in the record suggests otherwise
here. A difference in the bargained conditions under which an em-
ployer will honor an individual employees’ voluntary authorization to
make such deductions and the conditions under which a union will
honor an objection is simply not discrimination of the type proscribed
by the duty of fair representation.
MACHINISTS LOCAL 2777 (L-3 COMMUNICATIONS) 1069
For these reasons, we find the Unions did not engage
in any form of discrimination that would violate their
duty of fair representation.34
V.
For the reasons we have explained above,35 we hold
that, absent a more compelling rationale or other proce-
dures that minimize the burden of annual objection not
present in this case, a union violates its duty of fair repre-
sentation if it declines to honor nonmember employees’
express, written statement to the union that they object
on a continuing basis to supporting union activities not
related to collective bargaining and contract administra-
tion. If a union provides a written explanation of the
consequences of submitting a simple objection in con-
trast to a continuing objection, the union does not violate
its duty by honoring simple objections for only 1 year.
In addition, a union need not honor requests to object for
periods of time other than 1 year and continuously.
Although we concluded above that the “legal land-
scape” was not relevant to whether a breach of the duty
of fair representation occurred in this case, it is relevant
to our choice of remedy. In light of consistent court ap-
proval of the requirement under the Act, the lack of any
contrary indication by the Board, and the General Coun-
sel’s previous advice approving the requirement,36 the
Unions could reasonably have believed that the require-
ment was lawful. Indeed, we hold today that the re-
quirement may be permissible if properly justified or if
the burden imposed on potential objectors is further
minimized by other features of the union’s Beck proce-
dures. We accordingly decline to give retroactive appli-
cation to our ruling.37
ORDER
The Respondents, International Association of Ma-
chinists and Aerospace Workers, AFL–CIO, Upper

34 Accord: Gorham, supra, slip op. at 9.
35 The judge also rested his conclusion, in part, on the fact that the
Unions treated employees covered by the Railway Labor Act differ-
ently than those covered by the National Labor Relation Act, honoring
continuing objections from the former but not the latter. We find that
fact to be of no relevance. The Unions were attempting to comply with
the differing legal requirements under the two laws as construed by the
Federal courts. The Unions do not argue that they could not, as a prac-
tical matter, honor continuing objections, and the fact that they did so
under judicial compulsion pursuant to the RLA suggests nothing more.
36 All cited above.
37 In determining whether the retroactive application of a Board de-
cision will cause manifest injustice, the Board balances three factors:
(1) the reliance of the parties on preexisting law; (2) the effect of retro-
activity on accomplishment of the purposes of the Act; and (3) any
particular injustice arising from retroactive application.” Allied Me-
chanical Services, 352 NLRB 662 (2008); SNE Enterprises, 344 NLRB
673, 673 (2005); Epilepsy Foundation, 331 NLRB 676, 679 (2000),
enf. denied 268 F.3d 268 F.3d 1095 (D.C. Cir. 2001).
Marlboro, Maryland, and International Association of
Machinists and Aerospace Workers, AFL–CIO, Local
Lodge 2777, Milton, Florida, their officers, agents, and
representatives, shall
1. Cease and desist from
(a) Requiring nonmember employees, who are covered
by a collective-bargaining agreement containing a union-
security clause and who object to the payment of dues
and fees for nonrepresentational activities, to renew their
objections on an annual basis.
(b) In any like or related manner restraining or coerc-
ing 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) Rescind the requirement that objecting nonmember
employees renew their objection on an annual basis.
(b) Notify nonmember employees who are subject to a
union-security clause, by publication in the IAM Journal,
that the annual renewal requirement for objections to
payment of dues and fees for nonrepresentational activi-
ties has been rescinded.
(c) Recognize Robert Prime as a continuing objector
and continue to recognize his objector status until he
revokes his objection.
(d) Within 14 days after service by the Region, post at
its union office in Milton, Florida, copies of the attached
notice marked “Appendix.”38 Copies of the notice, on
forms provided by the Regional Director for Region 15,
after being signed by the Respondents’ authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees and
members are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings,
the Employer has gone out of business or closed the fa-
cility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by L-3 Communications Vertex Aerospace LLC
at its Pensacola facility at any time since November
2004.
(e) Sign and return to the Regional Director sufficient
copies of the notice for posting by L-3 Communications

38 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1070
Vertex Aerospace LLC, if willing, at all places 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 that the Respondent has taken to
comply.

MEMBER SCHAUMBER, concurring in part and dissenting in
part.
I concur with my colleagues’ finding that the Respon-
dent Union’s annual renewal requirement for Beck objec-
tors was arbitrary and thus breached the Union’s duty of
fair representation in violation of Section 8(b)(1)(A). I
write separately for two reasons. First, workers have a
fundamental Section 7 right to refrain from supporting
nonrepresentational union activities, but current Board
law does not give sufficient weight to this right. More-
over, burdens on workers seeking to exercise their right
are unnecessarily high, making the right more illusory
than real. Thus, I believe that Board law must change to
give proper weight to employees’ Beck rights. Second, I
dissent to my colleagues’ finding that the Union’s annual
renewal policy was not discriminatory under the duty of
fair representation.
I. BACKGROUND
Employees subject to a union-security arrangement
have the right to become nonmembers and are required
as a condition of employment to pay only “agency fees,”
an amount equal to union membership dues.1 Under
Communication Workers v. Beck,2 nonmembers, if they
so choose, must pay only those fees germane to a union’s
role as collective-bargaining representative.3 These hold-
ings are consistent with employees’ Section 7 right to
refrain from joining or assisting labor organizations.
While the Court’s decision in Beck was hailed for pro-
tecting workers’ right to refrain from union political and
social activities with which they disagreed, Beck rights
have proven more illusory than real because of the bur-
dens erected around their exercise.
Employees have a statutory right, guaranteed by Sec-
tion 7, to refrain from joining or assisting a labor organi-
zation, and an employee’s objection to union expendi-
tures beyond those required for representational pur-
poses, such as for political and social causes, falls
squarely within that right. This is no dry or technical

1 NLRB v. General Motors, 373 U.S. 734 (1963).
2 487 U.S. 735 (1988).
3 I disagree with those who would define expenses “germane to col-
lective bargaining” far more broadly than the Board or the courts have
been willing to do. In light of the primacy of the employee right at
issue, the free exercise of that right should be left to the choice of the
employee and not to the persuasive power of the union.
matter; it is a matter of individual conscience; it goes to
the heart of a worker’s free speech and associational
rights given effect by Section 7.
In certain circumstances where parties have equal but
countervailing rights, the Board has balanced those
rights, giving effect to both “with as little destruction of
one as is consistent with the maintenance of the other.”4
Such is not the case here. While employees have a fun-
damental Section 7 right to refrain from supporting a
union’s nonrepresentational expenses, a union has no
equal, countervailing right to burden employees’ right to
object. Thus, the Board should not engage in a balancing
test when judging a union’s administration of employees’
Beck rights. This error is compounded, as discussed be-
low, because the Board’s current test balances an em-
ployee’s statutory right against the deferential duty-of-
fair-representation standard.5
The Board presently requires a union, as part of its
duty of fair representation, to provide new employees
with notice of their rights under Beck and General Mo-
tors when or before the union attempts to obligate them
to pay dues. Typically, newly hired employees are pre-
sented with a dues-checkoff form and a union members’
application form, which allow them to become union
members and pay full union dues. The union has no cor-
responding obligation, however, to provide newly hired
employees with a form permitting them to remain non-
members and pay agency fees incurred only for represen-
tational activities. The notice problem is further exacer-
bated by the confusing language of most collective-
bargaining agreements. Union-security clauses typically
state that full membership in the union is a condition of
continued employment and do not explain unit members’
Beck rights. Under such circumstances, it is not unrea-
sonable for an employee to mistakenly believe that if he
becomes a nonmember, he will not be fulfilling a condi-
tion for his continued employment.

4 NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956). In
Babcock & Wilcox, the competing interests were employers’ property
rights and employees’ Sec. 7 right to organize. As the Supreme Court
noted, both rights are protected by “the same authority, the National
Government.”
5 The inequity of balancing an employee’s statutory right against the
deferential duty-of-fair-representation standard is made manifest in
Gorham v. Machinists, No. RWT 09cv2472 (D. Md. Aug. 20, 2010).
In Gorham, a district court determined that the union’s annual renewal
requirement for Beck objectors was not arbitrary. The basis for the
court’s holding? The simplistic truth that “both nonmembers and un-
ions may alter their positions over time.” Thus, under the DFR stan-
dard, one can conclude, as the Gorham court did, that the mere fact that
people change their minds on occasion is a sufficient basis for a union
to burden an employee’s statutory right to withhold fees from the union
for nonrepresentational activities with which the employee disagrees.
MACHINISTS LOCAL 2777 (L-3 COMMUNICATIONS) 1071
Employees who fully understand their Beck rights and
desire to exercise them face powerful disincentives to
doing so. A Beck objector cannot be a participating un-
ion member.6 Thus, employees who object to their un-
ion’s expenditures on political or social causes face a
Hobson’s choice: continue to pay full dues despite their
philosophical, or perhaps moral, objection to them or
become a nonmember and forfeit any role in the union
that represents them. The significant impact of resigna-
tion on a unit employee was described by the Interna-
tional Brotherhood of Electrical Workers in its union-
security objection plan distributed to employees:

Employees who elect to become agency fee payers—
that is, who choose not to become full-fledged IBEW
members—forfeit the right to enjoy a number of bene-
fits available only to full union members. Among the
benefits available only to full union members are the
right to attend and participate in union meetings; to
nominate and vote for candidates for union office; the
right to participate in contract ratification and strike
votes; the right to participate in the formulation of
IBEW collective bargaining demands; and the right to
serve as delegates to the International Convention.7

While an employee may strongly oppose and not want
to support the union’s political and social activities—and
poll data reflect that substantial percentages of union
members harbor such objections—they may just as
strongly support union representation and desire to act in
solidarity with their fellow workers through the union.
Resignation from the union deprives the worker of the
opportunity to do so.
Furthermore, workers who decline to join the union in
order to exercise their rights under Beck are branded
“Beck objectors,” the unfortunate term adopted by the
Board in California Saw. Such employees understanda-
bly fear that their coworkers will perceive them as ob-
jecting more generally to the presence of a union and not
standing in solidarity with the unit on bargaining matters.
The difficulties for “Beck objectors,” however, have
only just begun. Once employees exercise their right to
object—to become financial core members—procedural
obstacles are placed in their way. One such obstacle is
the annual renewal requirement that is the subject of this
case. Unlike union members and agency fee-payers,
“Beck objectors” must renew their objection every year
during a narrow window period. Thus, they must annu-

6 In California Saw & Knife Works, 320 NLRB 224 (1995), the
Board stated, without explanation, “A unit member may exercise Beck
rights only when he or she is not a member of the union.” 320 NLRB
at 236.
7 HR 105-397, 105th Congress, 1st Session (Nov. 8, 1997) at p. 10.
ally get up the courage to resign from the union, assert
“objector” status, and remember the hoops to jump
through in order to do so.
In California Saw, the Board held that it was sufficient
for a union to print a notice of Beck rights only once a
year in the inside of the union’s monthly magazine. If
objectors forget to renew their objection during the
“window period,” they are forced to financially support
causes and activities with which they may strongly dis-
agree for a full year until the next “window period.”
As a result of these various disincentives, few employ-
ees exercise their Beck rights; they continue to pay dues
for union activities with which they may philosophically
or politically disagree.8
As to the subject of this case, annual renewal, the
Board has applied a far too deferential standard, the duty
of fair representation, to a union’s ability to burden em-
ployees’ exercise of their Beck rights. The duty of fair
representation applies to a union’s representational ac-
tivities; expenditures for activities not germane to collec-
tive bargaining are by their very nature non-
representational. I would therefore overrule California
Saw to the extent that it requires the Board to apply a
duty-of-fair-representation standard to a union’s conduct
regarding Beck objectors.
Applying the duty of fair representation under extant
Board law, however, I would find, contrary to the major-
ity, that the Union’s annual renewal requirement was
discriminatory because it treats similarly situated em-
ployees differently. I therefore respectfully dissent from
this part of the majority’s decision.
II. EMPLOYEES HAVE A STATUTORY RIGHT TO WITHHOLD
FEES THAT SUPPORT A UNION’S NONREPRESEN
TATIONALEXPENDITURES
In NLRB v. General Motors,9 the Supreme Court held
that a union-security clause under Section 8(a)(3) may
require employees, as a condition of employment, to pay
dues and fees “whittled down to [their] financial core,”
an amount which includes only those expenses “germane
to collective bargaining, contract administration, and
grievance adjustment.”10 In Pattern Makers League v.
NLRB,11 the Court held that Section 7, which grants em-
ployees the right to “refrain from any or all [concerted]
activity,” gives employees a statutory right to resign
from union membership at any time. A contrary ruling
would be “inconsistent with the policy of voluntary un-
ionism implicit in Section 8(a)(3). . . . By allowing em-

8 In this case, the Union reported that out of approximately 700,000
current members, only about 1000 have exercised their Beck rights.
9 373 U.S. at 742.
10 Beck, 487 U.S. at 745.
11 473 U.S. 95 (1985).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1072
ployees to resign from a union at any time, Section
8(a)(3) protects the employee whose views come to di-
verge from those of his union.”12
The Charging Party, relying on General Motors and
Pattern Makers, argues that an employee’s right to with-
hold part of its agency fees from a union seeking to
spend those fees on activities beyond what is required for
representational purposes falls squarely within an em-
ployee’s Section 7 right to refrain from concerted activi-
ties. The judge found merit in this argument and agreed
that if employees’ right to refrain from union member-
ship and support (a right employees clearly have under
the plain language of Sec. 7) is equal to the right to join
and support a union, “then it seems to me any action
which interferes or restrains with employees’ exercise of
that right would violate the Act to the same extent that
employer conduct interfering with employees’ right to
engage in protected activity would violate the Act.” I
agree with the judge and find that the Supreme Court’s
rulings compel the conclusion that the Board should as-
sess union-security procedures for compliance with Sec-
tions 8(a)(3) and 8(b)(1)(A).
Section 8(b)(1)(A) states: “It shall be an unfair labor
practice for a labor organization or its agents (1) to re-
strain or coerce (A) employees in the exercise of the
rights guaranteed in section 7.” Requiring Beck objec-
tors to renew their objection during an annual window
period restrains and coerces employees from exercising
their right to refrain from assisting a labor organization
in its nonrepresentational activities. Exercising a right
during an annual window period unnecessarily places the
burden on the objecting nonmember to protect his fun-
damental statutory and constitutional right to refrain. I
would therefore find that an annual renewal requirement
for Beck objectors is a per se violation of Section
8(b)(1)(A).
For the same reason, I disagree with the majority’s
holding that a “simple” objection should be honored for
1 year only and must be renewed, while a “continuing”
objection would not require renewal. If annual renewals
have no rational basis, as we have found, then why re-
quire them for any employee? In my view, all objections
should be treated as continuing until the employee noti-
fies the union of a change in status.13

12 Id. at 104–105, 106.
13 This follows from my finding that annual renewal is discrimina-
tory. Members and nonmembers do not make “simple” or “continu-
ous” declarations of their status, nor are they required to rethink their
status each year. Their status is continuous until further notice to the
Union. The same procedure should apply to all employees, including
objectors.
III. BOARD LAW SHOULD NOT REQUIRE THAT A
UNION’SCONDUCT TOWARD BECK OBJECTORS BE
MEASURED AGAINST A UNION’S DUTY
OF FAIR REPRESENTATION
In Air Line Pilots Assn. v. O’Neill,14 the Supreme
Court considered whether the union breached its duty of
fair representation when it negotiated a strike settlement
agreement that granted benefits to some pilots and denied
benefits to others. The Court held that the duty of fair
representation was akin to the duty owed by a fiduciary,
and that the sole question was whether the union acted
fairly and reasonably in balancing the competing inter-
ests of the different employees.15 The Court stated that a
union’s duty of fair representation “applies to all union
activity, including contract negotiation.”16 Based on that
broad statement, the Board in California Saw, supra,
concluded, without any analysis whatsoever, that “[i]n
light of the Court’s explicit directive that the duty of fair
representation applies to all union activity, we find ines-
capable the conclusion that a union’s obligations under
Beck are measured by that standard.”17 The Board’s rote
application of the Court’s statement in O’Neill without
considering the nature of the union activity involved re-
sulted in its overly broad application to annual renewal
requirements for Beck objectors.18
First, the activity at issue in O’Neill was the union’s
negotiation of a strike-settlement agreement, a purely
representational activity. In contrast, the activity in ques-
tion in this case is the employees’ exercise of their statu-
tory rights to elect Beck fee-payer status because of their
opposition to the nonrepresentational activities of the
union, the union’s expenditure of funds on activities un-
necessary to its role as exclusive collective-bargaining
representative. As a result, the duty of fair representa-
tion, as the very term implies, should have no applicabil-
ity.
Second, since an employee subject to a union-security
clause has a fundamental statutory right to elect Beck fee-
payer status, there is little, if any, room for balancing the
interests of employees who do not make the election
against the interests of employees who do. Posing the
question underscores the inappropriateness of the duty-
of-fair-representation standard in determining the lawful-
ness of the procedures used by the Union in this context.

14 499 U.S. 65 (1991).
15 Id. at 74–75.
16 Id. at 67.
17 320 NLRB at 230.
18 For a comprehensive discussion of the inappropriate application of
the duty of fair representation to a union’s Beck objection procedures,
see Office Employees Local 29 (Dameron Hospital Assn.), 331 NLRB
48, 52 (2000) (Brame concurring in part and dissenting in part).
MACHINISTS LOCAL 2777 (L-3 COMMUNICATIONS) 1073
My colleagues in the majority do just that, however, sug-
gesting that those who do not object to the union’s non-
representational expenditures have an interest in having a
union with more money to aggressively represent their
interests, a status the Union may be deprived of depend-
ing on the level of administrative costs it incurs in han-
dling Beck objections. But Beck objectors’ interest in the
free exercise of their statutory right not to fund non-
representational union expenditures far outweighs the
incidental interest of nonobjectors in the level of the un-
ion’s administrative costs, if they have a legally cogniza-
ble interest at all in this context. Such an analysis ele-
vates the interests of nonobjectors in preserving the un-
ion’s nonrepresentational expenditures to the level of the
statutory right being asserted by the objectors, who op-
pose funding of those very expenditures.
Third, as is clear from the above discussion, applying a
duty-of-fair-representation standard to Beck objections
creates an inherent conflict of interest for the Union ren-
dering it incapable of exercising the fiduciary duty called
upon by that standard. The Union has a vested interest in
minimizing the number of Beck objectors because more
objections mean less money available to the Union for its
nonrepresentational activities. The Board should not
apply a standard that gives unions the power to use the
process to benefit their interests to the detriment of the
fundamental statutory interests of employees subject to a
union-security clause.
Finally, as noted above, Section 8(a)(3) allows unions
to require, as a condition of employment, that employees
become members, but under Section 7, that “member-
ship” requirement extends only to the payment of fees
and dues germane to collective bargaining, contract ad-
ministration, and grievance adjustment. General Motors,
supra. In Beck, nonmember objectors claimed that Sec-
tion 8(a)(3) did not permit the union to require them to
support nonrepresentational activities. The Court found
this claim within the purview of the Board’s primary
jurisdiction and that the challenged fee collection was
“subject to” Section 8.19 In Marquez v. Screen Actors
Guild,20 the Court reiterated that the Board has primary
jurisdiction over allegations that union conduct related to
a union-security clause is impermissible under Section
8(a)(3). These findings challenge the Board’s current
view that Beck rights must be analyzed under a duty-of-
fair-representation standard. To the contrary, in my
view, the Court’s holdings mandate that the Board apply
8(a)(3)’s prohibition against discrimination and
8(b)(1)(A)’s prohibition against restraint and coercion

19 487 U.S. at 742 (“There can be no doubt, therefore, that the chal-
lenged fee-collecting activity is ‘subject to’ Sec. 8.”).
20 525 U.S. 33, 50 (1998).
directly to union conduct unauthorized by 8(a)(3), in-
cluding procedures involving a union-security clause.
This analysis is consistent with the Board’s approach
in assessing union-security procedures in other contexts.
For example, in Food & Commercial Workers Locals
951, 7, & 1036 (Meijer, Inc.),21 the Board held that the
union violated Section 8(b)(1)(A) by sending newly
hired employees a “welcoming letter” stating that they
were required to become full members of the union as a
condition of employment.
In sum, I would overrule California Saw on this issue
and find that a union’s rule or policy regarding an em-
ployee’s exercise of his Beck rights must be analyzed
under Sections 8(a)(3) and 8(b)(1)(A) rather than under
the duty of fair representation.
IV. THE UNION’S ANNUAL RENEWAL REQUIREMENT
IS DISCRIMINATORY
The courts and the Board have generally defined dis-
crimination as treating similarly situated employees dif-
ferently.22 The employees at issue—union members,
nonmember agency-fee payers, and nonmember Beck
objectors—are similarly situated employees, all subject
to a contractual union-security clause as authorized under
Section 8(a)(3). As such, the employees in each group
are “members” as defined by General Motors, supra.23
Employees who elect to join the Union pay full member-
ship fees and dues, and once they have announced their
status as members, they remain members until they no-
tify the Union otherwise. Nonmembers pay agency fees
equal to union dues. They may assert their status as
nonmembers at any time, but once they have done so,
they remain nonmembers until they notify the Union

21 329 NLRB 730, 739 (1999); see also Service Employees Local
680 (Leland Stanford Jr. University), 232 NLRB 326 (1977) (finding
that union’s notice to new employees that they were required to become
full union members, and union’s refusal to accept the resignation of two
employees, violated Sec. 8(b)(1)(A)), enfd. 601 F.2d 980 (9th Cir.
1979).
22 See, e.g., Olmstead v. Zimring, 527 U.S. 581, 614 (1999) (Stevens
concurring); Clark & Hinojosa, Attorneys at Law, 247 NLRB 710, 718
(1980).
23 The majority’s convoluted attempt to distinguish these three
groups of employees as not similarly situated is unpersuasive. The
question at issue is not, as the majority states, what constitutes a proper
objection. That question applies only to objectors. The question is
what notice the Union may require of each group’s members as to their
status under the union-security clause. For two groups—members and
nonmember nonobjectors—the Union requires a single notice and
nothing further until the member chooses to change his status. For
nonmember objectors, however, they must give notice of their status
every year. Even if I accept the majority’s conclusion (which I do not)
that members and nonmembers are not similarly situated, I would still
find disparate treatment of the two nonmember groups. Nonmember
nonobjectors are not required to renew their status annually while non-
member objectors are required to do so.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1074
otherwise. In contrast to these two groups, employees
who choose to assert their Beck rights must announce
their status during a 30-day window period designated by
the Union. If they miss the window period because of
absence or inadvertence, they must pay full agency fees
for a year until the next window period. Once they
choose objector status, they do not, like other employees,
maintain that status until further notice. They must re-
new that status every year—during the window period.
Thus, objectors are treated differently than other simi-
larly situated employees for one reason—the exercise of
their Section 7 right to refrain from assisting the Union in
nonrepresentational activities.
In Miranda Fuel Co.,24 the Board stated that Section 7
“gives employees the right to be free from unfair or ir-
relevant or invidious treatment by their exclusive bar-
gaining agent in matters affecting their employment.”
An exclusive bargaining representative has the obligation
“to serve the interests of all its members without hostility
or discrimination toward any, to exercise its discretion
with complete good faith and honesty, and to avoid arbi-
trary conduct.”25 These are the frequently cited standards
under which the Board considers a discrimination claim
under the duty of fair representation.26 In O’Neill, the
Court found no discrimination under these standards be-
cause the union showed that the reason for its disparate
treatment of two similarly situated groups of pilots was
rational and thus was not invidious discrimination of the
kind prohibited by the duty of fair representation.27
Here, the majority has found, and I agree, that the Union
has offered no rational explanation for its disparate
treatment of Beck objectors. In the absence of a rational
explanation, and in light of the fact that the disparate
treatment is directly based on the objectors’ exercise of
their statutory right to object, I would agree with the
judge and find the Union’s annual renewal discrimina-
tory.
V. CONCLUSION
Although I concur with the majority that the annual re-
newal requirement in this case is arbitrary and thus vio-
lates the Union’s duty of fair representation, I find that

24 140 NLRB 181, 185 (1962).
25 O’Neill, 499 U.S. at 76 (quoting Humphrey v. Moore, 375 U.S.
335, 342 (1964)).
26 The majority cites Trnka v. Auto Workers, 30 F.3d 60, 63 (7th Cir.
1994), for the proposition that discrimination under the duty of fair
representation “requires inquiry into the subjective motivation behind
union action.” The court in Trnka based this assertion on the above-
quoted passages from O’Neill. I do not find that these passages support
the court’s conclusion that the Board requires proof of subjective mo-
tive to find discrimination. In any event, the Board has not adopted the
7th Circuit’s interpretation.
27 499 U.S. at 81.
the limited nature of the majority’s rationale, built nar-
rowly around one element of the Union’s duty of fair
representation, will unnecessarily allow unions to per-
petuate annual renewal, one of the existing impediments
to employees’ free exercise of their rights under Beck.
Employees’ Beck rights are firmly grounded in Section 7,
and the lawfulness of a union’s administration of that
right should be measured against employees’ statutory
right and not the union’s duty of fair representation. As a
result, I would find that the annual renewal requirement
at issue here is a per se violation of Section 8(b)(1)(A).

MEMBER HAYES, concurring in part and dissenting in part.
I join Chairman Liebman, Members Schaumber and
Becker in finding that the Respondent Union’s annual
renewal requirement for Beck objectors was arbitrary and
thus breached its duty of fair representation in violation
of Section 8(b)(1)(A). I join Member Schaumber in dis-
senting from our colleagues’ failure to find that the Re-
spondent’s requirement was also discriminatory under
the duty of fair representation. I am in sympathy with
the views expressed in Member Schaumber’s opinion
that the standard for analysis in duty-of-fair-
representation cases should not apply when dealing with
Beck allegations as it is unjustifiably deferential. Indeed,
like Member Schaumber I believe that Beck objectors’
statutory rights are broader than the Board has recog-
nized. However, I find no need to reach those matters in
the present case. I prefer to discuss them in depth in an
appropriate future case.

MEMBER PEARCE, dissenting in part.
I agree with the majority, for the reasons set forth in
parts I and II of the majority opinion, that the appropriate
legal framework for analyzing this case is the duty of fair
representation under Section 8(b)(1)(A).1 Contrary to
my colleagues, however, I would dismiss the 8(b)(1)(A)
allegation that the Unions breached their duty of fair rep-
resentation by requiring the Charging Party to renew his
Beck2 objection annually.
To establish this violation, the General Counsel bears
the burden of proving that the Unions’ action was arbi-
trary, discriminatory, or in bad faith. Because the annual
renewal requirement rationally serves the Unions’ le-
gitimate interests and was well supported by legal prece-
dent at the time of their actions, I find that this burden

1 I also join part IV of the majority opinion, which holds that the
General Counsel failed to prove that the Unions’ annual renewal re-
quirement was discriminatory, and part II of the majority opinion to the
extent it observes that the General Counsel does not challenge the an-
nual renewal requirement under the “bad faith” prong of the duty of fair
representation and, in any event, finds that the record fails to demon-
strate bad faith.
2 Communications Workers v. Beck, 487 U.S. 735 (1988).
MACHINISTS LOCAL 2777 (L-3 COMMUNICATIONS) 1075
has not been met. Indeed, in my view, it would be mani-
festly unjust to find a violation here.
The majority acknowledges, as it must, that a union’s
action is arbitrary under the duty of fair representation
“only if [it] can be fairly characterized as so far outside a
‘wide range of reasonableness’ that it is wholly ‘irra-
tional’ or ‘arbitrary.’” Marquez v. Screen Actors Guild,
Inc., 525 U.S. 33, 45 (1998) (emphasis added) (quoting
Air Line Pilots Assn. v. O’Neill, 499 U.S. 65, 67 (1991)).
Further, “a union must be allowed a wide range of rea-
sonableness in serving the unit employees and any sub-
sequent examination of a union’s performance must be
highly deferential,” and appropriately consider the legal
landscape at the time of the union’s actions. Letter Car-
riers Branch 529, 319 NLRB 879, 881 (1995). Although
my colleagues in the majority cite these well-settled
principles, in my view they plainly err when applying
them to the Unions’ annual renewal requirement.
The Unions presented three rational purposes for their
annual renewal requirement. First, the requirement pro-
vides the Unions with valid addresses necessary to sup-
ply objectors with required financial information. Sec-
ond, it promotes administrative efficiency by having all
objections expire at the same time. Third, it effectively
prompts employees to reconsider their objections in light
of updated information that the Unions supply on an an-
nual basis.
The Unions’ reasonable assertion that the annual re-
newal requirement serves their legitimate interest in ob-
taining Beck objectors’ accurate addresses is far from
irrational. Clearly, accurate addresses are essential if the
Unions are to fulfill their duty to annually inform Beck
objectors of the percentage of total union expenses that
are chargeable to them. The Unions incur considerable
cost in mailing that information to objectors, and there is
nothing irrational in their attempt to conserve resources
by minimizing the risk of mailing to incorrect locations.
But my colleagues deem this legitimate interest irrational
because the Unions have an alternative source of infor-
mation: the employer. In my view, this position fails.
The existence of a potential alternative in no way dem-
onstrates that the Unions’ preference for obtaining ad-
dresses from the employees themselves was arbitrary.
Stage Employees IATSE Local 720 (AVW Audio Visual),
332 NLRB 1, 3 (2000) (“To establish ‘arbitrary’ conduct
it is not enough to show errors in judgment, or that a
more prudent union would have acted differently.”),
revd. 333 F.3d 927 (9th Cir. 2003). The majority’s con-
clusion is at odds with the Board’s approach in informa-
tion-request cases, where parties need not avail them-
selves of alternative sources of information, River Oak
Center for Children, 345 NLRB 1335, 1335–1336 fn. 6
(2005), enfd. 273 Fed. Appx. 677 (9th Cir. 2008), even
though they enjoy none of the deference accorded unions
under the fair-representation standard. Nor is it certain
that employer-supplied information will be current, and,
even if accurate, that the union can be assured that an
employer will furnish it in a timely manner. See United
Electrical Contractors Assn., 347 NLRB 1 (2006) (em-
ployer unlawfully withheld unit employees’ addresses).
The employees themselves are the best source of infor-
mation in this situation, and the annual renewal require-
ment enables the Unions reliably to access that source.3
The Unions cited another reasonable administrative
consideration: the annual renewal requirement is admin-
istratively efficient in that all objections expire at the
same time and are effective for the same period. Under
the majority’s ruling, a union must spend time and
money interpreting the objections and tracking which
objections are annual and which are continuing. Avoid-
ing these inefficiencies is a reasonable purpose and,
therefore, hardly irrational.4
Likewise, it is far from irrational for the Unions to as-
sert that the annual renewal requirement helps to ensure
that objectors reevaluate whether to continue their objec-
tions, at regular intervals, in light of changed circum-
stances. The Unions calculate, on an annual basis, the
percentage of their total expenses that are germane to
their role as the unit employees’ collective-bargaining
representative and hence chargeable to Beck objectors.
They submit the detailed basis for these calculations to
the objectors every year in a voluminous report. As the
judge found, that percentage varies significantly from
year to year. It is entirely reasonable to assume that, for
at least some employees, the proportion of non-

3 The majority asserts that the Unions already possess employee ad-
dresses, but employees move and errors occur. The point is that Unions
have a legitimate interest in obtaining accurate addresses and/or verify-
ing them, and the annual renewal requirement serves that interest. The
majority also proposes that the Unions could simply have informed
employees who had filed continuing objections that it is their duty
inform them of any change of address. As stated above, the existence of
this alternative course hardly renders the Unions’ annual renewal re-
quirement wholly irrational and arbitrary—employees are more likely
to provide the information in a submission resulting in a monetary
benefit than simply because they have been notified of a duty to pro-
vide it—and the majority errs by failing to accord the Unions the
“highly deferential” review required under our precedent. Letter Carri-
ers Branch 529, 319 NLRB at 881.
4 The Unions raised this consideration before the administrative law
judge. While they have not cited it in support of their exceptions to the
judge’s decision, I find it an appropriate consideration when determin-
ing whether the General Counsel has met his burden of proving arbi-
trary union action.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1076
chargeable expenditures is a significant consideration in
their decision whether to object.5
Another type of information contained in the annual
report provided by the Unions is the nature and amounts
of the nonchargeable expenditures, which, like the pro-
portion of overall expenditures that they comprise,
change from year to year. This data, together with other
information likely to have been received from the Unions
such as changes in member-only benefits and political
positions supported, can reasonably be expected to in-
form some employees’ choice whether to object.
It also stands to reason that the level of satisfaction
that employees, including objectors, have with their rep-
resentation likewise varies from year to year depending
on the Unions’ effectiveness in negotiating and adminis-
tering collective-bargaining agreements. The annual
renewal process effectively requires employees to recon-
sider their decision and does so at precisely the same
intervals at which the Unions furnish updated informa-
tion about their expenditures and the chargeability
thereof.
Perhaps the most compelling support for the conclu-
sion that the Unions’ actions were not irrational or arbi-
trary is the legal landscape in place at the time the Un-
ions enforced the annual renewal requirement. The only
court to rule on this issue in the NLRA context held that
an annual renewal requirement comports with the duty of
fair representation. Abrams v. Communications Workers,
59 F.3d 1373 (D.C. Cir. 1995).6 The court in Abrams
explained that “the annual renewal requirement is per-
missible in light of the Supreme Court’s instruction that
‘dissent is not to be presumed—it must affirmatively be
made known to the union by the dissenting employee.’”
Id. at 1381–1382 (citing Machinists v. Street, 367 U.S.
740, 774 (1961)).7 The court found the requirement rea-

5 The judge discussed this possibility and acknowledged that an an-
nual renewal requirement was “not unreasonable” in light of it.
6 Other courts have addressed annual renewal requirements imposed
by labor unions governed by public sector labor statutes or the Railway
Labor Act (RLA), two contexts where First Amendment principles are
implicated. Compare Tierney v. City of Toledo, 824 F.2d 1497, 1506
(6th Cir. 1987) (lawful in public sector); Kidwell v. Transportation
Communications Union, 731 F.Supp. 192, 205 (D. Md. 1990) (lawful
under RLA), affd. in part and revd. on other grounds 946 F.2d 283 (4th
Cir. 1991), with Seidemann v. Bowen, 499 F.3d 119, 125 (2d Cir. 2007)
(unlawful in public sector); Shea v. Machinists, 154 F.3d 508, 517 (5th
Cir. 1998) (unlawful under RLA); Lutz v. IAM, 121 F.Supp.2d 498,
506–507 (E.D. Va. 2000) (same).
7 In the years since Street, the Supreme Court has repeatedly reaf-
firmed the principle that dissent should not be presumed in the dues
objection context. See Chicago Teachers Union Local 1 v. Hudson,
475 U.S. 292, 306 fn. 16 (1986); Abood v. Detroit Board of Education,
431 U.S. 209, 238 (1977); Railway Clerks v. Allen, 373 U.S. 113, 118–
119 (1963). The Court’s recent decision in Davenport v. Washington
Education Assn., 551 U.S. 177 (2007), did not disturb that well-settled
sonable because the union, like the Unions here, dis-
closed the necessary information before objections were
required to be made. Id.
Equally compelling is the Agency’s own General
Counsel’s memorandum issued in 1988, shortly after the
Supreme Court decided Beck. General Counsel Memo-
randum 88-14, Guidelines Concerning CWA v. Beck,
1988 WL 236187 (Nov. 15, 1988). In that memoran-
dum, the General Counsel took the position that “a union
can require nonmembers to file new objections, as dis-
cussed below, each year.” Id. at *3. And yet, because
the majority now disagrees with that requirement, it con-
cludes that the Unions’ actions here were arbitrary.
Again, the majority fails to apply the standard required
by the extant Board and judicial decisions.
As the majority concedes, the burden that the annual
renewal requirement imposes on objectors is quite mod-
est. Put simply, a Beck objector who desires to remain
an objector in the upcoming year need merely write a
short statement of objection and drop it in the mail. That
burden is particularly light in this case because the em-
ployees had a full 1-month window within which to file
their annual objections, and the Unions exceeded their
duty of fair representation by annually notifying all bar-
gaining-unit employees of their right to file an objection.
See California Saw & Knife Works, 320 NLRB 224, 233
(1995) (union must inform an employee of Beck rights
only when it first seeks to obligate him to a union-
security clause), enfd. 133 F.3d 1012 (7th Cir. 1998).
Indeed, the burden is so slight that the majority finds it
necessary to exaggerate it by treating the consequence of
failing to file a timely objection as a burden in itself.
The only action required of an employee in order effec-
tively to object is the mailing of a one-line letter or post-
card once a year. To describe the consequence of failing
to do so as an additional burden twists the concept of
burden beyond recognition.
In finding the annual renewal requirement “arbitrary,”
my colleagues fail to afford the Unions the “high defer-
ence” to which they are entitled under the Board’s duty-
of-fair-representation cases. There are several indisputa-

principle. In Davenport, the Court held that a state government could,
consistent with the First Amendment, require public sector unions to
obtain nonmembers’ affirmative consent before expending their fees for
election-related purposes. The Court’s discussion of the Street lan-
guage must be read in that limited context, which did not address dues
objection procedures under Beck, Hudson, or the RLA. The Court did
not purport to modify the law governing dues objections. Rather, it
distinguished between that body of law and the First Amendment prin-
ciples asserted by the respondent public sector union in attacking the
state’s regulation of its political spending: “The constitutional floor for
unions’ collection and spending of agency fees [under Hudson and the
RLA] is not also a constitutional ceiling for state-imposed restrictions.”
551 U.S. at 185.
MACHINISTS LOCAL 2777 (L-3 COMMUNICATIONS) 1077
bly legitimate and reasonable operational considerations
justifying the Unions’ requirement, any one of which
would defeat an allegation of arbitrariness under the fair-
representation standard, especially in view of the mini-
mal burden that the requirement imposes on objectors.
The broadly supportive legal landscape in which the Un-
ions established and enforced the requirement, and upon
which they relied, underscores the reasonableness of
their conduct. The majority’s finding of a violation is
made possible only by ignoring settled law and the le-
gitimate interests of the Unions in administering their
internal affairs.8 I respectfully dissent.
APPENDIX
NOTICE TO MEMBERS AND EMPLOYEES
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 Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT require nonmember employees, who are
covered by a collective-bargaining agreement containing
a union-security clause and who object to the payment of
dues and fees for nonrepresentational activities, to renew
their objections on an annual basis.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL rescind the requirement that objecting non-
member employees renew their objection on an annual
basis.
WE WILL notify nonmember employees who are subject
to a union-security clause, by publication in the IAM
Journal, that the annual renewal requirement for objec-
tions to payment of dues and fees for nonrepresentational
activities has been rescinded.

8 I note that a Federal district court recently found, on a different re-
cord, that the union did not breach its duty of fair representation by
requiring nonmembers, who tendered “permanent and continuing”
Beck objections, to renew their objections annually. Gorham v. Ma-
chinists, No. RWT 09cv2472 (D. Md. Aug. 20, 2010).
WE WILL recognize Robert Prime as a continuing ob-
jector and continue to recognize his objector status until
he revokes his objection.

INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, AFL–CIO AND ITS
LOCAL LODGE 2777

Joseph A. Hoffman Jr., Esq., for the General Counsel.
William H. Haller, Esq., for the Respondent.
Glenn M. Taubman, Esq., for the Charging Party.
BENCH DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. I
heard this case in Pensacola, Florida, on December 10, 2007.
Robert Prime, an individual, filed the charge on December 16,
2003, and amended it on September 12, 2007. On September
26, 2007, the complaint issued alleging that the International
Association of Machinists and Aerospace Workers, AFL–CIO,
and its Local Lodge 2777 (the Respondent or the Union) vio-
lated Section 8(b)(1)(A) of the Act by requiring nonmember
employees who object to the payment of dues and fees for non-
representational activities to renew their objections on an an-
nual basis, and by refusing to recognize the Charging Party as
an objector since November 2004, because he failed to renew
his objection. The Respondent filed its answer to the complaint
on October 10, 2007, essentially admitting the facts but denying
that it violated the Act as alleged.
After hearing the testimony of witnesses, reviewing the
documentary evidence, and considering arguments made by
counsel for the parties in pretrial memoranda and at the close of
the hearing, I rendered a bench decision in accordance with
Section 102.35(a)(10) of the Board’s Rules and Regulations.
For the reasons stated by me on the record, I found that the
Respondent Unions breached their duty of fair representation
by requiring nonmember objectors to renew their objections on
an annual basis and by refusing to treat the Charging Party as
an objector since November 2004, because of his failure to
renew his objection. I concluded that this conduct violated
Section 8(b)(1)(A) of the Act as alleged in the complaint.
I hereby certify the accuracy of the portion of the transcript,
pages 113 through 133, containing my bench decision.1 A copy
of that portion of the transcript, as corrected, is attached to this
decision as “appendix A.”
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Specifically, Respondent IAM shall
be required to rescind the requirement that nonmembers who
object to the payment of dues and fees for nonrepresentational

1 I shall correct the Tr. 117, LL. 17, where “background” should ap-
pear in place of the word “bargain.” I have also added the case cita-
tions for those cases referred to on the record.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1078
activities renew their objections on an annual basis and to no-
tify employees in bargaining units covered by a union-security
clause that this requirement is no longer in effect. I recommend
that Respondent IAM communicate the rescission of the annual
renewal requirement in the same manner that it communicates
its objection procedures to employees, i.e., by publication in the
IAM Journal. To the extent that Respondent Unions have
charged and collected from the Charging Party, and any other
objecting nonmembers, fees in excess of those required for
representational activities as a result of a nonmember failing to
renew his or her objection, the Respondent should be required
to reimburse the nonmember, with interest, for any excess fees
collected since the 2004 objection period.2 I have chosen this
reimbursement period because it coincides with the first year
that Prime’s objection was not recognized as a result of his
failure to renew it. There is no evidence before me of any spe-
cific individual denied objector status at an earlier date.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondents, International Association of Machinists
and Aerospace Workers, AFL–CIO, Upper Marlboro, Mary-
land, and International Association of Machinists and Aero-
space Workers, AFL–CIO, Local Lodge 2777, Milton, Florida,
their officers, agents, and representatives, shall
1. Cease and desist from
(a) Requiring nonmember employees, who are covered by a
collective-bargaining agreement containing a union-security
clause and who object to the payment of dues and fees for non-
representational activities, to renew their objections on an an-
nual basis.
(b) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the requirement that objecting nonmember em-
ployees renew their objection on an annual basis.
(b) Notify nonmember employees who are subject to a un-
ion-security clause, by publication in the IAM Journal, that the
annual renewal requirement for objections to payment of dues
and fees for nonrepresentational activities has been rescinded.
(c) Recognize Robert Prime as a continuing objector retroac-
tive to November 2004, and continue to recognize his objector
status until he revokes his objection.
(d) Reimburse Prime, with interest, for any fees collected
from him in excess of those required for representational activi-
ties since his objector status was not renewed in 2004.

2 In the complaint, General Counsel sought, as a part of the remedy,
compounding of interest. The General Counsel has not provided any
basis for adopting this new formula for calculation of interest under
Board orders and I shall leave resolution of this issue to the Board.
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(e) Reimburse, with interest, any other objecting nonmember
whose request for continuing objector status was not recog-
nized since November 2004, for any fees collected in excess of
those required for representational activities.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of reim-
bursement due under the terms of this Order.
(g) Within 14 days after service by the Region, post at its un-
ion office in Milton, Florida, copies of the attached notice
marked “Apendix B.”4 Copies of the notice, on forms provided
by the Regional Director for Region 15, after being signed by
the Respondents’ authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
and members are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Employer
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by L-3 Communications Vertex
Aerospace LLC at its Pensacola facility at any time since No-
vember 2004.
(h) Sign and return to the Regional Director sufficient copies
of the notice for posting by L-3 Communications Vertex Aero-
space LLC, if willing, at all places where notices to employees
are customarily posted.
(i) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX A
113
JUDGE MARCIONESE: Thank you. Good afternoon. This
hearing will be in order.
As I indicated before we adjourned, I’ve basically taken the
time now to review the evidence that I’ve heard in the hearing,
as well as to consider the arguments that were made orally here,
as well as in your pretrial motions that were filed on Friday and
this morning, and I’m now prepared to render a bench decision
pursuant to the Board’s rules and regulations.
Now, although this is a bench decision, under the require-
ments I still need to include within my decision all of the ordi-
nary findings and conclusions that you would find in a fully
written decision, so I will begin at the beginning.

4 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.”
MACHINISTS LOCAL 2777 (L-3 COMMUNICATIONS) 1079
The charge in this case was filed initially by Robert Prime,
an individual, on December 16, 2003, and amended on Sep-
tember 12, 2007, and that pursuant to that charge and amended
charge, the General Counsel issued the complaint and notice of
hearing in this case on September 26, 2007, alleging that the
International Association of Machinists and it’s local Lodge
2777 had violated Section 8(b)(1)(A) of the Act by requiring
nonmembers who object to paying full agency fees to renew
that status on an annual basis, and that is the sole issue before
me in this case.
Regardless of what other evidence might have indicated
114
were other issues, the only issue I need to decide is whether that
annual renewal requirement violates Section 8(b)(1)(A) of the
Act.
Now, the Respondent filed its answer to the complaint on
October 10, 2007, in which essentially the Respondent Union
admitted all of the factual allegations, denying only that the
annual renewal requirement violated the Act.
Now, jurisdiction in this case is based upon the fact that Mr.
Prime, while being represented by the union, was employed by
an employer engaged in commerce, and the facts establishing
commerce are that the employer, L-3 Communications Vertex
Aerospace, LLC, and its predecessors, a Delaware limited li-
ability company with a place of business at the Naval Air Sta-
tion here in Pensacola, Florida, was engaged in aircraft mainte-
nance and support, and that annually in conducting its opera-
tions, it provided aircraft maintenance and support to the U.S.
Government valued in excess of $50,000, and based upon that,
the employer has a substantial impact on the national defense of
the United States, and that it also ships and sells from the facil-
ity goods valued in excess of $50,000 directly to points outside
the state of Florida, and purchases and receives goods valued in
excess of 50,000 directly from outside the state of Florida, and
thus is engaged in commerce within the meaning of the Act.
There is also no dispute that the Respondent union is a
115
labor organization within the meaning of the Act, and I so find,
and that the local lodge as well is a labor organization.
There also is an admission that the international president,
Mr. Buffenbarger, and the general secretary-treasurer, Mr.
Mart, are agents of the union within the meaning of Section
2(13) of the Act, and that by virtue of Section 9(a) of the Act,
the Respondent unions have been exclusive collective-
bargaining representative of a unit of employees employed by
this employer.
And the unit as set forth in the complaint is all production
and maintenance employees, including aircraft inspectors and
leads employed by the employer in the T-39 undergraduate
military flight officer training program at NAS, Pensacola,
Florida; excluding all office clerical employees, professional
employees, guards and supervisors as defined in the Act;
That since August 1, 2005, by virtue of 9(a), the Respondent
unions are also the exclusive collective-bargaining representa-
tive of the following unit of employees, and that’s production
and maintenance employees employed at AIMD, Pensacola,
Florida, in keeping with the certification issued by the NLRB
on January 17, 1995, in case number 15–RC–7873, for the pur-
pose of collective bargaining with respect to wages, hours of
work and other conditions of employment of employees in the
bargaining unit as herein defined. As of January 1, 1999, this
116
included the UH-3H SAR helicopter project.
Rather than repeat this all here and take the time, I’ll just
note that the units are as described in the complaint, and I will
set them forth in my written order adopting this.
There’s also no dispute in terms of the complaint and the
admission that the employees in those bargaining units have
been subject to provisions and collective-bargaining agree-
ments that require the employees to either become or remain
members of the union, or pay an agency fee to the union. And
as such, they would be covered by the Supreme Court’s deci-
sion in Beck.
There’s also no dispute that in the course of its business as a
union, that the Respondent unions have expended some of the
monies collected pursuant to the contractual provisions from
employees in those units for purposes that are both representa-
tional as the Courts have defined them and non-
representational, and there’s also no dispute that the Charging
Party, Mr. Prime, has at all times been employed as a member
of the bargaining units at issue in this proceeding.
And bringing us up to the issue in dispute here is that on No-
vember 9, 2003, Mr. Prime, in fact, sent a letter to the union,
exercising his rights to object to the payment of agency fees
beyond what was necessary to support the union’s representa-
tional activities, and in that letter in 2003, he indicated his de-
sire that his objection be treated as continuing in nature.
117
And there’s also no dispute that the Respondent replied to
that letter by denying—recognizing him as an objector for that
year only, and denying his request to be treated as an objector
on a continuing basis, citing its procedures that are published
annually in the IAM periodical.
Okay. Now, the issue would seem to be fairly straightfor-
ward at that point, and, in fact, the Board had already ruled on a
motion for summary judgment in another case as to whether the
denial of an objection based on an annual renewal requirement
violates the Act, and had remanded that case for development
of a record, showing, I guess, facts regarding the reasonable-
ness of the union’s requirement and the burdens and impact of
such a requirement, both on the objectors and the union, which
is the reason that we are here holding this hearing today rather
than deciding this case on a stipulated record.
Now, the evidence that was presented today, other than, you
know, background evidence and the actual procedure itself and
how it’s been communicated to the employees, consisted essen-
tially of the testimony of the Charging Party Mr. Prime and of
Mr. Minnich, the union’s assistant secretary, who is involved in
the administration of the union’s procedures for nonmember
objectors.
Now, Mr. Prime testified when asked that he felt harassed by
the annual renewal requirement, because in his view, once he
has told the union that he doesn’t want to support its political
118
agenda, it should be up to him to let the union know if he’s
changed his mind, and furthermore, that since he doesn’t read
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1080
any of the IAM’s periodicals or newspapers, he would receive
no notice of his obligation to renew every year or even of the
time period within which such a renewal were to be filed, and
as a result, would risk either forgetting to renew or would risk
filing it at a different time than the union has imposed, and thus
would lose his right to object.
And he compared the situation to other groups where he has
indicated that he is resigning from the group, and his resigna-
tion is considered complete at that point, and he’s not required
every year to tell the group that he is resigning.
Now, at the same time, Mr. Prime acknowledged that in or-
der to accomplish the renewal, all that he needs to do is write a
letter and pay the cost of postage to send it to the international
union and let them know that he is renewing it.
Now, Mr. Minnich, when testifying for the union, essentially
the primary reason that he advanced for requiring objectors to
renew on an annual basis is the union’s desire to keep track of
the objectors in case they had changed their address or moved
from the prior year for number one reason so that they would
know where to send the annual audit, showing how the union is
calculating the fee reduction for the coming year and indicated
that the union expends a good deal of money not only compil-
ing that, but also mailing it first class to each
119
nonmember who has filed an objection, and that if they—and it
would be even more costly if they were to file it to the wrong
address, have it returned, and then have to resubmit it to an-
other address.
And he also indicated that another reason for the annual re-
newal appears to be in order to keep track and ensure that em-
ployees who may filed an objection in a prior year out of un-
happiness or pique over, say, a contract deal that had been ne-
gotiated by the union, that they still really were interested in
continuing their objection in following years, because as the
Union indicated, not all objectors do so on ideological or prin-
cipled grounds as Mr. Prime has expressed.
Now, at the same time, another fact Mr. Minnich also testi-
fied that because the union is required by law to send this
breakdown every year to employees who object, it’s reasonable
to require the objectors to notify the union each year that they
still intend to file to object to the nonrepresentational activities.
Now, Mr. Minnich did indicate that out of 700,000—
approximately 700,000 employees cover by the IAM, only
about 900 to 1,000 nonmembers object every year, and he also
testified that about 95 to 97 percent of the audit packets that are
mailed out to objectors in fact make it to the correct address,
and this is probably, I would say, due to the extensive efforts
that the union, in fact, utilizes to keep track of its membership
and
120
keep its database current through reports filed by the local
lodges and its constant surveillance of those reports to make
sure that the information is accurate and up to date.
Now, and Mr. Minnich also acknowledged in his testimony
that although it does not recognize continuing objections from
individuals like Mr. Prime who are covered under the National
Labor Relations Act, it already has in place a system for accept-
ing continuing objections from employees who are covered by
contracts under the Railway Labor Act, and that is based on
other court cases in which courts have ruled that the annual
renewal is not permissible.
All right. Now, the parties have each filed memoranda
which I’ve considered and essentially followed up with some
oral argument today. The General Counsel, while setting forth
arguments pro and con on the annual renewal, essentially takes
no position, leaving it for the Board to decide and therefore is
of no assistance to me in deciding this case, whereas you would
expect the General Counsel would be the first person to tell me
why something is unlawful.
Now, the Charging Party argues takes a different approach,
arguing that the annual renewal violates the Act, but not on the
duty of fair representation standard that the other parties seem
to focus on. Rather Mr. Taubman argues that employees have a
statutory right to remain nonmembers and refuse to financially
support a union’s political, ideological or non-representational
121
activities, and thus any limits placed on their exercise of that
right—I’m sorry. They have the right to refrain and limit their
obligation under lawful union security clauses to paying only
their financial core fee.
Now, under the view espoused by the Charging Party, the
union has a statutory right to—a duty to recognize such objec-
tions and adjust the financial obligations of nonmembers who
object, and that its collection of any more than that financial
core would be a per se violation of the Act, and I hope I’m
getting this correct, and essentially that it’s not for the union to
determine whether a nonmember’s objection, once voiced, has
terminated, that only the employee can exercise the right to
change his mind.
Now, the Respondent argues that the only standard appropri-
ate for deciding this issue is the duty of fair representation
based on the Supreme Court’s decision in Beck,5 and the
Board’s decision in California Saw & Knife Works,6 and that
essentially is that whether the requirement for annual renewal is
arbitrary, discriminatory or in bad faith.
And the Respondent Union argues that the requirement is not
arbitrary under Board law, because it is within the wide range
of reasonableness that is allowed to unions, and that it is not
wholly irrational and justified by the union’s need to keep cur-
rent on addresses where they have to mail the expensive annual
audit.
122
The Respondent Union also argues that it’s not discrimina-
tory, because unlike union membership or dues check-off au-
thorization where no annual renewal is required, there is no
annual event that would trigger a renewal of such status,
whereas under the law, since the union must make an annual
accounting of the amount it spends on representational and non-
representational activities and report that to nonmembers on an
annual basis so that they can make an intelligent decision
whether to object, it’s reasonable and not discriminatory to also
at the same time require the objector to renew the objection on
an annual basis.

5 Communication Workers of America v. Beck, 487 U.S. 755 (1988).
6 320 NLRB 224, 229–230 (1995).
MACHINISTS LOCAL 2777 (L-3 COMMUNICATIONS) 1081
The Union also points to the burden that it would have if it
had to determine from each letter submitted by a nonmember
whether the individual is objecting just for that year or on a
continuing basis, because as I indicated previously from Mr.
Minnich’s testimony, not all objections are ideologically based.
All right. And it also points out that the—in comparing the
relative burdens, the burden on an individual objector is mini-
mal compared to the burden that would be imposed on the un-
ion of having to administratively determine what’s a continuing
and what’s an individual objection, and then having to adjust its
procedures accordingly.
Okay. Now, having considered the arguments and not just
those but anything that might have been contained in the
memoranda, the first issue, which we talked about briefly, is
123
whether or not the case is even moot because of the testimony
of the Charging Party, that as far as he knows he’s continued to
pay the reduced fees of an objector since 2002 notwithstanding
the international union’s letter rejecting his request to be treated
as a continuing objector and requiring him to file on an annual
basis.
Now, even though it’s not entirely clear from the record
whether that is, in fact, true, assuming that it is the case, I agree
that the issue is not moot here, because as Mr. Minnich testi-
fied, speaking for the international union, the IAM considers
him to be a non-objector agency-fee-payer, required to pay the
full amount of fees, not the reduced fees, because he did not
renew on an annual, so that even if his local lodge were letting
him essentially get away with paying the reduced fee, that’s not
the way it should be, and so essentially the danger still stands
that at some point, they would decide to enforce that against
him and thus require him to pay the full agency fee, so the issue
is still ripe even as to Mr. Prime.
And I also note that it appears that because of his status in
the international’s records as a full agency-fee-payer, he is not
getting the annual audits that are sent to people who file their
objections and renew them on an annual basis. And I’ll also
note that since this is a national procedure applicable to not just
Mr. Prime but other nonmembers, there still is an issue to be
decided as to whether or not the renewal is valid.
124
The next thing I’m going to note before we reaching the mer-
its is a concern that I raised about the General Counsel chang-
ing its position on this issue, and while the General Counsel, in
exercising its prosecutorial discretion certainly has the right to
change its view of the law and place before the Board this new
issue to decide, the fact that the General Counsel has not chal-
lenged the annual renewal requirement previously when it had
the opportunity to do so and most notably in the California Saw
& Knife Works case which was the lead case under Beck which
challenged the very procedures that the IAM had adopted, that
the fact that the GC essentially did not challenge the annual
renewal through all these years I see as part of the—although
it’s not a basis for me to dismiss the complaint, since I don’t
have the authority to do that, it seems to me that it is part of the
factual and legal landscape in which the union operated, which
is one of the factors that the Board and the Courts have consid-
ered in determining whether a union’s actions under the duty of
fair representation is arbitrary or not.
Now, turning to the merits, while the Charging Party’s ar-
gument in terms of a per se type of violation for interfering
with Section 7 rights is actually somewhat intriguing and ap-
pears to me to have some merit, essentially I agree that if, in
fact, employees have the right to refrain from union member-
ship and support which is equal to the right to join and
125
support a union, then it seems to me any action by a union
which interferes or restrains with employees’ exercise of that
right would violate the Act to the same extent that employer
conduct interfering with employees’ rights to engage in pro-
tected activity would violate the Act.
But saying that, it appears to me that under the current state
of the law, citing both Beck and California Saw & Knife
Works, it has been determined that treatment of objecting non-
members is to be judged under a duty-of-fair-representation
standard, and I will leave it to the Board to determine if some
other standard should apply to these types of cases.
Now, applying a duty-of-fair-representation standard, the
Courts and the cases cited by the Board in the remand in that
other case that the General Counsel had attached to his memo-
randum involving the UAW at Colt’s Manufacturing, the Board
has cited cases noting that essentially there are three distinct
prongs to the duty of fair representation, and it is whether the
conduct of the union is arbitrary, discriminatory or in bad faith,
and it is found to be any one of those, then it would violate
Section 8(b)(1)(a) of the Act.
Now, I will note initially that it doesn’t appear that anyone in
this case is—and I may be wrong on this; you can correct me,
Mr. Taubman, if I am—that anyone is challenging the annual
renewal requirement as being in bad faith, and even if that were
to be argued, I would reject that, because simply
126
think there’s no evidence in the record before me to indicate
that in adopting an annual renewal requirement, that the union
was acting other than for what it perceived to be administrative
purposes in carrying out its obligations under the Beck law,
rather than any kind of bad faith on the part of the union.
Now, with respect to arbitrariness, the cases cited by the
Board in the remand, the O’Neill case7 and there’s a case in-
volving Black, I think it is, versus Ryder/PIE,8 essentially have
indicated that the Board has interpreted arbitrariness as deter-
mining whether a union’s actions are so far outside the wide
range of reasonableness as to be considered irrational. And
those cases and other cases cited by the Board distinguish that
from the discriminatory prong of the duty of fair representation
where if conduct is indeed discriminatory or in bad faith, then it
can never be reasonable.
So in evaluating the annual renewal requirement under the
arbitrary prong, I must consider whether it is so far outside the
range of reasonableness as to be irrational. Now, I will note
before getting to that that it seems that a number of those cases

7 Air Line Pilots v. O’Neill, 499 U.S. 65, 78 (1991).
8 Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 584 fn. 18 (6th
Cir. 1994).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1082
applying that test dealt with issues in terms of how a union
handled collective bargaining and the bargain that resulted from
contract negotiations or how it administered contracts and
grievance procedures in determining whether or not to file a
grievance or proceed to arbitration.
And I can see in a situation like that deference to a
127
union’s judgments and a wide range of reasonableness would
be an appropriate standard. I’m not sure if the Board has really
ever said specifically that in determining how a union treats
someone who has filed an objection as a nonmember to paying
for—supporting a union’s non-representational activities, that
the union is indeed required to such a wide range of reason-
ableness, but I’ll accept that as the law since it doesn’t appear
that it’s been held to the contrary.
I think there are different types of conduct by a union to be
evaluated with different factors that might cause less discretion
when dealing with a nonmember’s objection than in dealing
with how a union negotiates a contract or determines whether
to go forward to arbitration or not.
But in any event, in applying the arbitrariness standard, on
the first hand I cannot say, looking at the facts, that annual
renewal is irrational. As the Respondent points out, it has to by
law annually calculate the fee reduction and how much it is
going to charge to nonmembers who object and that, in act, as
shown by the procedures contained in the annual periodicals
distributed to the employees, that does change from year to
year, and it is not a minor change. It can sometimes be signifi-
cant.
So there is, of course, always the possibility that someone
who objects one year might change their mind and not object
based on the calculation for subsequent years, so it’s
128
not unreasonable, I think, to expect that employees who object
let the union know each year after it gets the annual notification
whether the individual still objects.
And also, too, the union’s concern about sending objection
materials to the correct address is not an unreasonable one on
its face, but at the same time, I note that the Respondent has
conceded that it does have other means of keeping track of both
members’ and nonmembers’ current addresses and that, in fact,
almost all of the packets that are sent out find their way to the
correct address, so that the problem of keeping updated infor-
mation does not seem to be that significant a burden on the
union to require annual renewal.
And at the same time, looking at the relative burdens, the
burden on the objecting nonmember appears on its face to be
slight, essentially the cost of mailing a letter or postcard every
year to the union and keeping themselves aware of when they
have to do that, but at the same time, when someone like Mr.
Prime has ideological objections to supporting a union and is
not likely to be reading the IAM’s periodicals, there is a risk
that such an individual will not become aware if the union
should change the time period for filing or can simply forget
that he has to renew, so there is somewhat of a risk and burden
on the nonmember from the annual renewal requirement.
And finally in terms of considering the factor in terms of the
factual and legal landscape within which the union is
129
operating in adopting and maintaining this annual renewal re-
quirement, as I indicated before, I already found that that fac-
tual and legal environment includes essentially acquiescence by
the General Counsel and such a requirement over a number of
years despite previous opportunities to challenge the legality of
it, but at the same time, the factual and legal environment in-
cludes the fact that the union already recognizes continuing
objections filed by employees who work under the Railway
Labor Act, and it, in fact, has a system in place to handle con-
tinuing objections.
So it seems to me unreasonable, bordering on the irrational,
not to apply the same procedures to similarly-situated employ-
ees who are covered by the National Labor Relations Act, so
although the Union has advanced some arguments that would
indicate that the requirement is reasonable and has some basis
with some rationality to it, I think considering the fact, which is
undisputed, that they already do and can treat objections on a
continuing basis and that I don’t see any real good rationale for
not doing so when someone like Mr. Prime makes clear on the
face of his request that he wants his objection treated on a con-
tinuing basis, I am constrained to find that the union’s require-
ment is, indeed, arbitrary under the duty-of-fair-representation
standard.
Now, I’m also going to discuss the discriminatory standard,
and as I’ve noted previously under Board law, if the
130
annual renewal requirement is found to be discriminatory, then
would not matter whether it was also—whether there was any
arguments to be made that it was reasonable, and on its face,
the annual renewal does, in fact, discriminate against nonmem-
bers who have stated a desire to refrain from supporting the
union’s non-representational activities, because the union im-
poses no similar requirement on employees who show their
support for the union by either joining the union or signing a
dues check-off authorization.
Now, the Union’s argument that the difference is that the
person who signs a check-off authorization or joins the union,
there’s no annual triggering event that would coincide with a
need to renew their status, that essentially goes to the reason-
ableness of the requirement, not whether or not individuals are
being treated differently because of whether or not they support
the union and the degree to which they support the union.
An employee like the Charging Party who has clearly stated
his desire to be treated as an objector, until he informs the un-
ion otherwise, is entitled to have that request recognized and
granted to the same extent as an employee who joins the union
and evinces his support for the union by signing a dues check-
off authorization.
So having considered all of the evidence and the arguments
by the parties, although I consider the issue a close one and
131
somewhat difficult, I do find as alleged in the complaint that
the union’s requirement that nonmembers who object renew
that objection on an annual basis is, in fact, a breach of the duty
fair representation, and accordingly, violates Section 8(b)(1)(A)
of the Act.
MACHINISTS LOCAL 2777 (L-3 COMMUNICATIONS) 1083
Now, for a remedy, because this procedure is included in a
procedure that’s of nationwide application, I will require that
the union rescind the annual renewal requirement from its pro-
cedures for objectors and that it inform not just Mr. Prime and
employees in his bargaining unit, but also employees who are
covered by the procedure on a nationwide basis that the re-
quirement has been rescinded, and I would—although I will
give some further consideration to this before I issue my final
order, but it would seem to me an appropriate way to do this,
rather than a notice posting, would be to publish it in the same
manner in which the union publishes the annual notice of the
Beck procedures.
Also with respect to the individual Charging Party, since it’s
unclear, to the extent he has been required to pay anything
more than the reduced fees of a nonmember objector over the
past few years, I will require the union to reimburse him with
interest for any extra dues or fees he’s had to pay, and to con-
tinue to recognize him on a continuing basis as an objector.
Now, what I will do is when I receive the transcript, I will
review the portions that contain my bench decision, make
132
any corrections that need to be made, and certify them to the
Board. Then I will issue an order which will contain the com-
plete order with any remedy that I’m recommending, including
any notice posting, and at that point, once that issues, any party
who is unhappy with not only my decision or conclusions but
also any rulings that I may have made during the hearing has a
right to file exceptions with the Board in Washington.
I’ll refer you to the Statement of Standard Procedures that
you received with the complaint and notice of hearing for how
to go about filing exceptions with the Board. You could also
take a look at the Board’s rules and regulations.
Okay. Anything further before we close the hearing?
MR. HALLER: No.
MR. HOFFMAN: No, Your Honor.
JUDGE MARCIONESE: No? Did you have a question?
MR. TAUBMAN: Yes. I don’t know if this is appropriate or
not, but it’s a question which if it’s not appropriate, just tell me,
but the issue of a remedy to other individuals who may have
had their—who may have also been refused an annual renewal?
JUDGE MARCIONESE: I think, because—again, if I change my
mind, it certainly will be—and I know you made that argument
in your memorandum which is now part of the record. Because
the allegation is against the international union and the proce-
dures of the international, and they apply nationwide,
133
at this point, my inclination would be that the remedy would go
to any objector who has failed to renew their objection and as a
result, has not been recognized as such as a result of the failure
to comply with that requirement.
Of course, you can take exceptions to that, and I may revise
it when I issue my final order, but that’s where I would be lean-
ing at this point.
All right. If there’s nothing further, then the hearing is
closed, and I thank you all very much for your memoranda and
your assistance in helping me decide this case. Thank you.
APPENDIX B
NOTICE TO MEMBERS AND EMPLOYEES
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 violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT require nonmember employees, who are cov-
ered by a collective bargaining agreement containing a union
security clause and who object to the payment of dues and fees
for nonrepresentational activities, to renew their objections on
an annual basis.
WE WILL NOT in any like or related manner restrain or coerce
you in the exercise of the rights guaranteed you by Section 7 of
the Act.
WE WILL rescind the requirement that objecting nonmember
employees renew their objection on an annual basis.
WE WILL notify nonmember employees who are subject to a
union security clause, by publication in the IAM Journal, that
the annual renewal requirement for objections to payment of
dues and fees for nonrepresentational activities has been re-
scinded.
WE WILL recognize Robert Prime as a continuing objector ret-
roactive to November 2004 and continue to recognize his ob-
jector status until he revokes his objection, and WE WILL reim-
burse him, with interest, for any fees collected from him in
excess of those required for representational activities since his
objector status was not renewed in 2004.
WE WILL reimburse, with interest, any other objecting non-
member whose request for continuing objector status was not
recognized since November 2004, because of the annual re-
newal requirement, for any fees collected in excess of those
required for representational activities.

INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AFL–CIO AND ITS LOCAL
LODGE 2777