Service Employees Local 121RN (Pomona Valley Hospital Medical Center)

National Labor Relations Board - Board Decisions

Jun 8, 2010

355 N.L.R.B. 234 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 40
234
Service Employees International Union, Nurses Alli-
ance, Local 121RN (Pomona Valley Hospital
Medical Center) and Carole Jean Badertscher.
Case 21–CB–14428
June 8, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
The principal issue before the Board is whether the
Respondent Union restrained or coerced employees in
violation of Section 8(b)(1)(A) of the National Labor
Relations Act by, among other things, threatening em-
ployees with adverse consequences if they failed to con-
tinue to pay dues and fees under an expired union-
security clause. The judge recommended dismissal of
the complaint.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
In disagreement with the judge, we find that a flyer
circulated by the Respondent during successor-contract
negotiations violated the Act.2
I.
The Respondent is the certified representative of about
1000 registered nurses at the Employer’s health care in-
stitution in Pomona, California. The parties’ 3-year col-
lective-bargaining agreement was set to expire on May
27, 2007,3 but they agreed to extend the contract on a
month-to-month basis while they negotiated a successor
agreement. On August 26, however, the Respondent
notified the Employer that it wished to terminate the con-

1 On November 19, 2008, Administrative Law Judge William G.
Kocol issued the attached decision. The General Counsel and the
Charging Party each filed exceptions and a supporting brief, and the
Respondent filed a brief opposing their exceptions. In addition, the
Charging Party moved for Member Becker’s recusal from participation
in this case, and the Respondent opposed the motion. Member
Becker’s separate ruling on the motion is included in the Board’s Deci-
sion.
2 Based on our finding that the Respondent’s “dues and fees” flyer
unlawfully restrained and coerced employees, it is unnecessary to pass
on the judge’s dismissal of an allegation that the Respondent also co-
erced employees in violation of Sec. 8(b)(1)(A) by circulating a flyer
describing the impact of California’s “professional strikebreaker” stat-
ute on the employees. The finding of another 8(b)(1)(A) violation
would be cumulative, and would not materially affect our remedial
order. See, e.g., Culinary Workers Local 226 (Casino Royale, Inc.),
323 NLRB 148 (1997); Auto Workers Local 695 (T.B. Wood’s), 311
NLRB 1328, 1328 fn. 2 (1993).
3 All subsequent dates are in 2007.
tract extension, and on September 6, following an 8(g)
notice, it conducted a 1-day economic strike.4 On Sep-
tember 26, the Respondent initiated a 5-day economic
strike after providing a second 8(g) notice.
After the parties’ collective-bargaining agreement was
terminated, both the Employer and an employee group
opposed to the Respondent (the Union Free Nurses) in-
formed the unit employees that because of the contract’s
expiration they were no longer required to pay union-
membership dues and fees under the contract’s union-
security clause. In addition, the Employer informed the
employees that, if they chose, they could resign from
union membership and/or revoke their dues-checkoff
authorizations. The Union Free Nurses also actively
encouraged employees to stop paying dues and fees, to
resign from union membership, and to sign a petition to
decertify the Union.
In reply, the Respondent distributed flyers at the hospi-
tal in mid-October. The flyer stated (emphasis in origi-
nal):

Work with an expired contract . . . What does
it mean?
The hospital and their representatives i.e. Man-
agers, directors, and anti union nurses have put out
misleading and incorrect information regarding hav-
ing “NO CONTRACT.”
In, truth the NLRA* requires management
(Pomona Valley Hospital) to maintain contract
terms and conditions of employment while it bar-
gains on a new agreement. Abandoning or chang-
ing a pre-existing condition is an unfair labor
practice (ULP), giving the union a basis for filing
an NLRB charge, calling a ULP strike, or filing a
challenge to a lockout.
YOU CONTINUE TO BE COVERED BY THE
TERMS AND CONDITIONS OF YOUR
CONTRACT!
An employer (Pomona Valley Hospital) must
maintain the status quo after the expiration of a
collective bargaining agreement until a new col-
lective bargaining agreement has been negotiated
or the parties have bargained to impasse.
When a contract expires, a union can file a
unilateral-change charge to enforce a term on the
agreement that had been followed by the parties,
a past practice independent of the contract, or a
past practice that conflicts with the contract.
Under the NLRA*, dues and fees may be col-
lected back to the expiration of the collective-
bargaining agreement (contract).

4 The expired agreement contained a no-strike provision.
SERVICE EMPLOYEES LOCAL 121RN (POMONA VALLEY HOSPITAL MEDICAL CENTER) 235
Many of you have inquired about the stop dues
form being distributed by the hospital and their rep-
resentatives. You may have been mislead [sic] into
believing that you are not obligated to pay dues and
fees during the period of negotiations. This is untrue
and retroactivity may occur prior or upon ratification
of the contract. Please ask yourselves why all the
anti leaders are still paying dues. Could it be they
don’t want the possibility of owing more in a lump
sum?
DUE [sic] AND FEE [sic] OBLIGATIONS
REMAIN INTACT AND MAYBE [sic]
COLLECTED PRIOR OR UPON
RATIFICATION OF THE CONTRACT.
WHEN YOU ARE NOT A MEMBER IN
GOOD STANDING, YOU FORFEIT YOUR
VOICE, RIGHTS TO PARTICIPATE IN
UNION EVENTS AND FORFEIT YOUR
VOTING PRIVILEGES.
*The National Labor Relations Board is an in-
dependent federal agency created by Congress in
1935 to administer the National Labor Relations Act,
the primary law governing relations between unions
and employers in the private sector. The statute
guarantees the right of employees to organize and to
bargain collectively with their employers, and to en-
gage in other protected concerted activity with or
without a union, or to refrain from all such activity.

In December, the parties agreed on a successor con-
tract. Also in December, the Respondent contested a
decertification petition, ultimately winning the election
and remaining the nurses’ bargaining representative.
Between the termination of the collective-bargaining
agreement in August and the end of the labor disputes in
December, 30 to 50 unit employees resigned from union
membership, and 50 to 100 unit employees stopped pay-
ing the dues and fees set forth in the union-security pro-
vision of the expired contract.
II.
The General Counsel contended that the Respondent’s
flyer was substantially misleading, and violated Section
8(b)(1)(A) by threatening employees with adverse con-
sequences if they failed to continue to pay dues and fees
under an expired union-security clause.
The judge disagreed. He acknowledged that under the
law, no bargaining unit employee may be required to
make such payments under an expired union-security
clause. But he also observed that, notwithstanding the
limits of a contractual union-security obligation, volun-
tary union members must continue dues payments to
maintain the full benefits of their membership. On
evaluation of the “dues and fees” flyer, the judge found
that at no point did the Respondent actually state that the
expired union-security provision required employees to
continue to pay dues and fees. He found instead that the
flyer appeared to be more of an appeal to voluntary
members to maintain their union membership and bene-
fits. Accordingly, he recommended dismissal of the un-
fair labor practice allegation.
III.
A union-security clause in a collective-bargaining
agreement requires that, as a condition of employment,
unit employees must pay union dues or agency fees to
their bargaining representative.5 Such a clause normally
does not survive expiration of the contract, based on the
express terms of the proviso to Section 8(a)(3) making
clear that nothing in the Act “preclude[s] an employer
from making an agreement with a labor organization”
that requires such payments.6 Additionally, “[t]he Board
has held that a union-security clause may not be applied
retroactively, and therefore that a union cannot demand
dues as a condition of employment for periods before the
execution of the agreement.” Teamsters Local 492
(United Parcel Service), 346 NLRB 360, 364 (2006)
(union violated Section 8(b)(1)(A) by demanding dues
for period after expiration of prior contract and before
execution of successor agreement).7
The test for determining whether the Respondent’s
flyer violated Section 8(b)(1)(A) is whether the flyer
reasonably tended to restrain or coerce employees in the
exercise of their Section 7 rights, which includes the
right to refrain from paying union dues or fees when
there is no contractual obligation to do so.8 In appropri-
ate circumstances, the Board will infer an unlawful threat
concerning the collection of dues and fees.9 It is thus our
responsibility to evaluate the entirety of the flyer’s mes-
sage in its overall context, to determine if such a threat
has been made. The test “is whether the words could
reasonably be construed as coercive, whether or not that
is the only reasonable construction.” Double D Con-
struction Group, 339 NLRB 303, 303–304 (2003). See

5 See generally, NLRB v. General Motors Corp., 373 U.S. 734
(1963).
6 See, e.g., Bethlehem Steel Co., 136 NLRB 1500, 1502 (1962), re-
manded on other grounds sub nom. Marine & Shipbuilding Workers v.
NLRB, 320 F.2d 615 (3d Cir. 1963), cert. denied 375 U.S. 984 (1964).
7 See also Teamsters Local 25 (Tech Weld Corp.), 220 NLRB 76, 77
(1975).
8 See, e.g., Bay Cities Metal Trades Council, 306 NLRB 983, 985
(1992), enfd. mem.15 F.3d 1088 (9th Cir. 1993); Local 32B-32J, SEIU
(Star Security Systems), 266 NLRB 137, 138–139 (1983).
9 See Auto Workers Local 785 (Dayton Forging), 281 NLRB 704,
707 (1986); Local 32B-32J, SEIU, supra, 266 NLRB at 139; Mine
Workers District 50 (Ruberoid Co.), 173 NLRB 87, 92–93 (1968).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 236
also Bay Cities Metal Trades Council, supra, 306 NLRB
at 985.
Here, the Respondent and the Employer had been ne-
gotiating to replace their expired contract for several
months without success. After several agreements to
extend the contract, the Respondent gave notice of its
desire to terminate the contract, resulting in termination
of the contract, including its union-security clause. The
Employer and the Union Free Nurses informed the unit
employees, accurately, that they were no longer required
by the collective-bargaining agreement to pay dues and
fees, and made clear that procedures were available for
resigning from union membership and for discontinuing
the payments.
The Respondent replied in the flyer, conveying several
points to counter the “misleading and incorrect informa-
tion” provided by the Employer and the Union Free
Nurses. The flyer began by broadly explaining that the
terms and conditions of the terminated contract were still
in effect, as required by the National Labor Relations
Act. This was generally true: Section 8(a)(5) and (d) of
the Act require that existing employment conditions,
with limited exceptions (including union-security
clauses), remain in effect during the collective-
bargaining process.10
But the flyer then made statements asserting that em-
ployees’ obligations to pay dues and fees survived expi-
ration of the contract, and clearly implying that the Re-
spondent would seek to enforce those obligations:

Under the NLRA*, dues and fees may be col-
lected back to the expiration of the collective bar-
gaining agreement (contract).
Many of you have inquired about the stop dues
form being distributed by the hospital and their rep-
resentatives. You may have been mislead [sic] into
believing that you are not obligated to pay dues and
fees during the period of negotiations. This is untrue
and retroactivity may occur prior or upon ratification
of the contract. Please ask yourselves why all the
anti leaders are still paying dues. Could it be they
don’t want the possibility of owing more in a lump
sum?
DUE [sic] AND FEE [sic] OBLIGATIONS
REMAIN INTACT AND MAYBE [sic]
COLLECTED PRIOR OR UPON RATIFICATION
OF THE CONTRACT.

Thus, the flyer asserted, wrongly, that employees had been
misled by the employer and that employees remained “obli-
gated to pay dues and fees.” It stated that employees’ “obli-

10 See, e.g., Litton Financial Printing Division v. NLRB, 501 U.S.
190, 198–199 (1991).
gations . . . maybe [sic] collected.” And, to underscore that
point, it emphasized that antiunion employee leaders were
“still paying dues,” suggesting that even employees who
were not union members continued to have a financial obli-
gation to the Union.
In finding the flyer lawful, the judge focused on a
paragraph appearing just after the cited portion of the
flyer, which stated:

When you are not a member in good standing, you for-
feit your voice, rights to participate in union events and
forfeit your voting privileges.

He found that this paragraph was an attempt to persuade
employees to voluntarily continue union membership, re-
gardless of contractual union-security requirements, and he
concluded that the flyer’s overall message was lawful. We
disagree.
The flyer refers to the employees being “obligated”
and their continuing “obligation” in the context of a dis-
cussion of the expired agreement and the employer’s
duty to refrain from making unilateral changes. Immedi-
ately after pointing out that the law generally requires
that contractual terms and conditions continue after the
contract expires, the Respondent’s flyer contains the fol-
lowing three statements: (1) “dues and fees may be col-
lected back to the expiration of the collective bargaining
agreement”; (2) “[y]ou may have been mislead [sic] into
believing that you are not obligated to pay dues and fees
during the period of negotiations. This is untrue and
retroactivity may occur prior or upon ratification of the
contract;” and (3) “DUE [sic] AND FEE [sic]
OBLIGATIONS REMAIN INTACT.” In context, those
statements clearly, but erroneously, implied that all em-
ployees in the unit, members and nonmembers, remained
obligated to pay dues and fees under the terms of the
expired collective-bargaining agreement in combination
with the prohibition on unilateral changes. The judge’s
conclusion, that the flyer would have been understood by
a reasonable reader to merely be urging employees to
voluntarily maintain their membership in order not to
lose the rights and privileges thereof, is negated by the
question it posed to employees: “Please ask yourselves
why all the anti leaders are still paying dues. Could it be
they don’t want the possibility of owing more in a lump
sum?” That rhetorical question did not highlight the
benefits of voluntarily maintaining membership, but in-
stead emphasized that if employees chose not to do so
during the period when no contract was in effect, their
continuing obligation to pay dues and fees would likely
be enforced in a more onerous manner later, i.e., through
collection of “a lump sum” which could, the flyer sug-
SERVICE EMPLOYEES LOCAL 121RN (POMONA VALLEY HOSPITAL MEDICAL CENTER) 237
gested, be “more” than the sum of periodic payments to
be made during the hiatus.
We need not reach the question of whether the flyer
contained an implied threat of discharge. Section
8(b)(1)(A) makes it an unfair labor practice to restrain or
coerce employees in the exercise of their rights. The
threat to collect dues and fees in a lump sum from em-
ployees who were not members of the Union or who ef-
fectively resigned their union membership and who exer-
cised their right not to make such payments during the
contract hiatus, a threat to engage in conduct prohibited
by the Act, constituted such restraint and coercion. Em-
ployees would reasonably have understood the flyer to be
explaining that their obligation to pay dues and fees sur-
vived contract expiration, and if they chose not to pay
such dues and fees during the hiatus period, the union
could and would collect such dues and fees or “more” in
a lump sum. Under the circumstances, we conclude that
the Respondent violated Section 8(b)(1)(A), by convey-
ing such a threat in support of an asserted employee obli-
gation to pay dues and fees covering a time period when
no union-security provision was in effect and as to which
no union-security clause could lawfully be enforced ret-
roactively.
CONCLUSIONS OF LAW
1. Pomona Valley Hospital Medical Center is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent restrained and coerced employees
in the exercise of their right to refrain from protected
union activity, in violation of Section 8(b)(1)(A) of the
Act, by distributing flyers that threatened employees with
adverse consequences if they failed to continue to pay
dues and fees under an expired union-security clause.
REMEDY
Having found that the Respondent violated Section
8(b)(1)(A) of the Act, we shall order it to cease and de-
sist and to take certain affirmative action necessary to
effectuate the policies of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Service Employees International Union,
Nurses Alliance, Local 121RN, North Hollywood, Cali-
fornia, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Restraining or coercing employees in the exercise
of their right to refrain from protected union activity, by
distributing flyers that threaten employees with adverse
consequences if they fail to continue to pay dues and fees
under an expired union-security clause.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed to
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its business office and meeting places copies of the at-
tached notice marked “Appendix.”11 Copies of the no-
tice, on forms provided by the Regional Director of Re-
gion 21, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to 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.
(b) Sign and return to the Regional Director sufficient
copies of the notice for posting by the Employer, if will-
ing, at all places at its facility where notices to employ-
ees are customarily posted.
(c) 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 PEARCE, dissenting.
Contrary to my colleagues, I would adopt the adminis-
trative law judge’s conclusion that the flyer titled, “Work
with an expired contract . . . What does it mean?” was
lawful because it contained a reasonably accurate state-
ment of certain of the rights and obligations of voluntary
union members. Among these obligations is the contin-
ued payment of union dues even after expiration of the
collective-bargaining agreement. The Union could law-
fully choose to pursue enforcement of that obligation
through judicial or internal union proceedings. More-
over, the flyer contained no threat of discharge, express
or implied. The Board has not previously found a viola-
tion of this kind absent a threat of discharge, e.g., Auto
Workers Local 785 (Dayton Forging), 281 NLRB 704,
707 (1986); Mine Workers District 50 (Ruberoid Co.),
173 NLRB 87, 92–93 (1968), or an actual discharge, e.g.,
Namm’s, Inc., 102 NLRB 466, 467–468 (1953) overruled
on other grounds in Kaiser Steel Corp., 125 NLRB 1039,
1041 fn. 2 (1959). I would decline to extend the Act’s

11 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 238
prohibition to cover statements unrelated to the union-
security provision. Accordingly, I would dismiss the
complaint.

MEMBER BECKER, ruling on motions.
The Charging Party in this case, as well as the Charg-
ing Parties or Petitioners in 12 other cases, have moved
that I recuse myself from participation in their respective
cases.1 Because of the overlapping arguments presented
in the motions, I have taken the occasion of the issuance
of our Decision in this case to announce my ruling on all
13 motions. For the following reasons, I have recused
myself from participation in Dana Corp., Cases 7–CA–
46965, et al., but decline to do so in the other cases.
Procedural History
The motions were filed on March 29, 2010. All of the
cases were pending before the Board prior to that date. I
was sworn in and became a Member of the Board on
April 5, 2010.
Applicable Standards
As an employee of the executive branch of the gov-
ernment, I am bound by two sets of ethical standards.
First, I am bound by the Standards of Ethical Conduct for
Employees of the Executive Branch set forth in Title 5 of
the Code of Federal Regulations. 5 CFR Part 2635. The
relevant sections provide:

Sec. 2635.101 Basic obligation of public service.

. . . .

(b) General principles. . . .

. . . .

(8) Employees shall act impartially and not give
preferential treatment to any private organization or
individual.

. . . .

(14) Employees shall endeavor to avoid any ac-
tions creating the appearance that they are violating

1 Aramark Uniform & Career Apparel, LLC, Case 18–RD–2692;
Communications Workers Local 4309 (AT&T Midwest & Ohio Bell
Telephone Co.), Case 8–CB–10487; AT&T Mobility, LLC, Case 19–
RD–3854; United Steel, Paper & Forestry, Rubber, Mfg., Energy,
Allied Industrial & Service Workers International Union, AFL–CIO,
CLC (Cequent Towing Products), Case 25–CB–8891, et al.; Auto
Workers Local Lodge No. 376 (Colt’s Mfg. Co.), Case 34–CB–2631, et
al.; Dana Corp., Case 7–CA–46965, et al.; Deco-Akal JV, Case 28–
CA–21082, et al.; Electrical Workers Local 34, AFL–CIO, CLC, Case
13–CB–18961, et al.; Food & Commercial Workers Local 700 (Kroger
Limited Partnership), Case 25–CB–8896; Machinists (IAM) and IAM
District Lodge 2777 (L-3 Communications Vertex Aerospace LLC),
Case 15–CB–5169; Los Angeles Times Communications, LLC, Case
21–UD–415; U.S. Foodservice, Case 28–CA–21892, et al.
the law or the ethical standards set forth in this part.
Whether particular circumstances create an appear-
ance that the law or these standards have been vio-
lated shall be determined from the perspective of a
reasonable person with knowledge of the relevant
facts.

. . . .

Subpart E. Impartiality in Performing Official Duties

Sec. 2635.501 Overview.
(a) This subpart contains two provisions in-
tended to ensure that an employee takes appropriate
steps to avoid an appearance of loss of impartiality
in the performance of his official duties. . . .

Sec. 2635.502 Personal and business relation-
ships.
(a) Consideration of appearances by the em-
ployee. Where an employee knows that a particular
matter involving specific parties is likely to have a
direct and predictable effect on the financial interest
of a member of his household, or knows that a per-
son with whom he has a covered relationship is or
represents a party to such matter, and where the em-
ployee determines that the circumstances would
cause a reasonable person with knowledge of the
relevant facts to question his impartiality in the mat-
ter, the employee should not participate in the matter
unless he has informed the agency designee of the
appearance problem and received authorization from
the agency designee in accordance with paragraph
(d) of this section.

. . . .

(b) Definitions. For purposes of this section:
(1) An employee has a covered relationship
with:

. . . .

(iv) Any person for whom the employee has,
within the last year, served as officer, director, trus-
tee, general partner, agent, attorney, consultant, con-
tractor or employee.

Second, I am bound by the standards set forth in Ex-
ecutive Order 13490 (Jan. 21, 2009), entitled Ethics
Commitments by Executive Branch Personnel. The rele-
vant sections provide:

Section 1. Ethics Pledge. Every appointee in
every executive agency appointed on or after
January 20, 2009, shall sign, and upon signing shall
be contractually committed to, the following pledge
upon becoming an appointee:
SERVICE EMPLOYEES LOCAL 121RN (POMONA VALLEY HOSPITAL MEDICAL CENTER) 239
“As a condition, and in consideration, of my
employment in the United States Government in a
position invested with the public trust, I commit
myself to the following obligations, which I
understand are binding on me and are enforceable
under law:

. . . .

2. Revolving Door Ban—All Appointees
Entering Government. I will not for a period of 2
years from the date of my appointment participate in
any particular matter involving specific parties that
is directly and substantially related to my former
employer or former clients, including regulations
and contracts.

. . . .

Sec. 2. Definitions. As used herein and in the
pledge set forth in section 1 of this order:

. . . .

(i) ‘‘Former employer’’ is any person for whom
the appointee has within the 2 years prior to the date
of his or her appointment served as an employee, of-
ficer, director, trustee, or general partner. . . .
(j) ‘‘Former client’’ is any person for whom the
appointee served personally as agent, attorney, or
consultant within the 2 years prior to the date of his
or her appointment, but excluding instances where
the service provided was limited to a speech or simi-
lar appearance. It does not include clients of the ap-
pointee’s former employer to whom the appointee
did not personally provide services.
(k) “Directly and substantially related to my
former employer or former clients” shall mean mat-
ters in which the appointee’s former employer or a
former client is a party or represents a party.

The Moving Parties argue that I am bound by the
statutory standard applicable to Federal judges contained
in 28 U.S.C. §455. By their express terms, however,
those statutory standards apply only to article III judges.2
See Greenberg v. Board of Governors of the Federal
Reserve, 968 F.2d 164, 167 (2d Cir. 1992) (holding that
standards in sec. 455 apply only to Supreme Court Jus-
tices and other Art. III judges). As a Member of the
Board, I am an employee of the executive branch and
therefore not bound by section 455, although the stan-

2 Sec. 455 applies to “Any justice, judge, or magistrate judge of the
United States.” 28 U.S.C. §451, in turn, provides, “‘judge of the
United States’ includes judges of the courts of appeals, district courts,
Court of International Trade and any court created by Act of Congress,
the judges of which are entitled to hold office during good behavior.”
dards set forth therein as well as their construction by the
courts offer useful guidance in the application of the
above-described standards applicable to executive branch
employees.
Application of the Standards to These Cases
The Moving Parties advance five arguments support-
ing the requests for recusal, each of which is addressed
below.
First, in the pending unfair labor practice case Dana
Corp., Case 7–CA–46965, et al., the Moving Parties ar-
gue that I should recuse myself because I “served as law-
yer on the brief jointly filed by the Respondent UAW
and AFL–CIO in opposition to the Charging Parties’
Exceptions to the Board.” Motion at 1. In fact, I did not
serve as counsel to a party in the pending case, but rather
to amicus curiae American Federation of Labor & Con-
gress of Industrial Organizations (AFL–CIO), and there-
fore neither 5 C.F.R. §2635.502 nor Executive Order
13490 requires recusal. However, as the Moving Parties
correctly point out, the Respondent International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW) and Amicus AFL–
CIO filed a joint brief in the case and I was a coauthor of
that brief. For that reason, I have recused myself from
participation in the Dana case. Cf. Trans World Airlines
v. Civil Aeronautics Board, 254 F.2d 90, 91 (D.C. Cir.
1958) (“The fundamental requirements of fairness in the
performance of [quasijudicial] functions require at least
that one who participates in a case on behalf of any party,
whether actively or merely formally by being on plead-
ings or briefs, take no part in the decision of that case by
any tribunal on which he may thereafter sit.”).
Second, in AT&T Mobility, Case 19–RD–3854, the
Moving Party asks that I recuse myself on the grounds
that I have “effectively pre-judged the law of this case.”
Motion at 12. I have never made any statements con-
cerning either the pending case or any facts relevant to
the pending case, and the Moving Party does not suggest
otherwise. Moreover, any public statements of mine
concerning any legal issue that might bear on the case
were made prior to my nomination and, indeed, prior to
my being aware that the President was considering my
nomination, and the Moving Party does not suggest oth-
erwise. In fact, in his original moving papers, the Mov-
ing Party does not cite any public statement of mine con-
cerning any legal issues raised in this case. As described
by the Moving Party, the legal issue concerns “employ-
ees’ right to a post-voluntary recognition secret ballot
election.” Motion at 12. Specifically, the legal question
at issue in AT&T Mobility is whether the Board should
overrule its prior representation case decision in Dana
Corp., 351 NLRB 434 (2007), which itself overruled
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 240
prior decisions in Keller Plastics Eastern, Inc., 157
NLRB 583 (1966), and its progeny. The Dana represen-
tation case created a window period during which em-
ployees may petition for an election despite their em-
ployer’s lawful, voluntary recognition of a union enjoy-
ing majority support. See 351 NLRB at 441 fn. 33. The
Moving Party asserts that I have “challenged the very
validity of such an election,” and in support of that asser-
tion he quotes part of a sentence from a law review arti-
cle I wrote in 1993, “Democracy in the Workplace: Un-
ion Representation Elections and Federal Labor Law,” 77
Minn. L. Rev. 495 (1993). The Moving Party argues that
the article “argued for a reform which ‘would mandate
employee representation, and the question posed on the
ballot would simply be which representative.’ See
Becker, 77 Minn. L. Rev. 495, 584 (1993).” The sen-
tence fragment quoted by the Moving Party actually has
nothing to do with the legal question at issue in AT&T
Mobility and, in fact, long predated the Dana decision.
Moreover, the portion of the sentence from the article
quoted by the Moving Party does not state my own view.
To the contrary, the quoted passage suggests a possible
argument, which the article then explains is precluded by
the statute. A fuller quotation makes this clear:

Alternatively, it could be argued that industrial democ-
racy should be made more like political democracy by
altering the nature of the choice presented to workers in
union elections. Such a reform would mandate em-
ployee representation, and the question posed on the
ballot would simply be which representative.
The reforms of mandating labor representation and of
abandoning the union election both address the distinc-
tion between political and labor representation. . . . Yet
each would require fundamental statutory revision
unlikely in the foreseeable future. Employees have al-
ways had the choice of no representation, and the Taft-
Hartley Act enshrined the right “to refrain” from repre-
sentation alongside workers’ right to “representatives
of their own choosing.” The Act also codified the
Cudahy doctrine [providing that the Board can certify a
union as employees’ representative only after an elec-
tion].

77 Minn. L. Rev. at 584. In fact, my own argument in the
article was stated in the following paragraph: “[T]he major-
ity will should be expressed through the conventional insti-
tution of the election.” 77 Minn. L. Rev. at 585. Thus, the
Moving Party’s contention that I am “opposed in principle
to the type of election guaranteed by Dana Corp.,” Motion
at 12–13, is simply without foundation.
I have in the past made public statements concerning
the legal issue raised in AT&T Mobility, although the
Moving Party does not cite them. See, e.g., “Neutrality
Agreements Take Center Stage at the National Labor
Relations Board,” 57 Labor L. J. 117, 126 (July 2006);
Hiatt & Becker, “At Age 70, Should the Wagner Act be
Retired? A Response to Professor Dannin,” 26 Berkeley
J. Emp. & Lab. L. 293, 299–300 (2005). In addition, as
the Moving Parties in both AT&T Mobility and Aramark
Uniform & Career Apparel, LLC, Case 18–RD–2692,
point out in their second supplemental supporting memo-
randa, as counsel to amicus curiae AFL–CIO, I signed a
brief filed in July 2004, in Dana Corp., 351 NLRB 434
(2007), which argued that the Board should not overrule
Keller Plastics, supra.3 The Supreme Court has clearly
held, however, “Nor is a decisionmaker disqualified sim-
ply because he has taken a position, even in public, on a
policy issue related to the dispute, in the absence of a
showing that he is not ‘capable of judging a particular
controversy fairly on the basis of its own circum-
stances.’” Hortonville Joint School District No. 1 v.
Hortonville Ed. Assn., 426 U.S. 482, 493 (1976). In fact,
“[i]t is well established . . . that ‘a judge’s views on legal
issues may not serve as the basis for motions to disqual-
ify.’” National Rifle Assn. of America v. City of Evans-
ton, 2008 WL 3978293 at *2 (N.D.Ill. 2008) (quoting in
re African-American Slave Descendants Litigation, 307
F.Supp. 2d. 977, 984 (N.D. Ill. 2004)). In other words,
“[t]he fact that a judge actively advocated a legal, consti-
tutional or political policy or opinion before being a
judge is not a bar to adjudicating a case that implicates
that opinion or policy.” Wessmann v. Boston School
Committee, 979 F.Supp. 915, 916–917 (D.Mass.1997).
As the 11th Circuit explained, “‘It appears to be an ines-
capable part of our system of government that judges are
drawn primarily from lawyers who have participated in
public and political affairs.’ . . . The fact that prior to

3 The Moving Parties in AT&T Mobility and Aramark argue that, un-
der the terms of Executive Order 13490, my signing of the brief in the
earlier Dana representation case necessitates my recusal from those two
pending cases in which parties have asked the Board to revisit the legal
question addressed in Dana. But while the Moving Parties quote sec.
1(2) of the Order, which requires that, for a period of 2 years after
assuming office, I recuse myself from participation “in any particular
matter involving specific parties that is directly and substantially
related to my former employer or former clients,” the Moving Parties
do not quote (or acknowledge in any way) sec. 2(k) of the Order, which
defines the term “directly and substantially related” to encompass only
“matters in which the appointee’s former employer or a former client is
a party or represents a party.” Neither of my former employers is a
party or represents a party in AT&T Mobility or Aramark. Moreover,
my former employer and client, the AFL–CIO, was not a party to the
original Dana case, but rather an amicus curiae. Thus, my signing of
the brief in the earlier Dana case is appropriately analyzed under the
principles set forth in the text that follows.
SERVICE EMPLOYEES LOCAL 121RN (POMONA VALLEY HOSPITAL MEDICAL CENTER) 241
joining the bench a judge has stated strong beliefs does
not indicate that he has prejudged the legal question be-
fore him. As noted above, judges have frequently heard
cases concerning subjects about which they have previ-
ously expressed some views.” U.S. v. Alabama, 828
F.2d 1532, 1543–1544 (11th Cir. 1987) (quoting Curry v.
Baker, No. 86-7639 (11th Cir. Sept. 24, 1986) (Vance, J.,
mem.)), cert. denied 487 U.S. 1210 (1988). In sum, Fed-
eral judges have uniformly held that “the expression of
opinion on a legal issue . . . does not create the appear-
ance of impropriety.” Buell v. Mitchell, 274 F.3d 337,
346 (6th Cir. 2001).
In Laird v. Tatum, for example, Supreme Court Justice
Rehnquist denied a motion seeking his recusal on the
grounds that in the course of testimony before a Senate
subcommittee and on other occasions he had “expressed
an understanding of the law . . . which was contrary to
the contentions of respondents in [the case before the
Court].” 409 U.S. 824, 826 (1972). Justice Rehnquist
explained that the motion raised “squarely the question
of whether a member of this Court, who prior to his tak-
ing that office has expressed a public view as to what the
law is or ought to be, should later sit as a judge in a case
raising that particular question.” Id. at 830. Justice
Rehnquist answered that question squarely in the nega-
tive. He also found “that none of the former Justices of
this Court since 1911 [when the predecessor disqualifica-
tion statute was enacted] have followed a practice of dis-
qualifying themselves in cases involving points of law
with respect to which they had expressed an opinion or
formulated policy prior to ascending to the bench.” Id. at
831. Justice Rehnquist cited a number of instances in
which, prior to taking the bench, Justices made public
statements concerning disputed policy or participated in
the formulation of public policy and then, after assuming
the bench, participated in cases addressing those policies.
Specifically in the labor context, Justice Black was one
of the principal authors of the Fair Labor Standards Act
and was Chairman of the Committee that reported it fa-
vorably to the Senate. Nonetheless, he participated in the
case that upheld the Act against constitutional challenge
as well as in later cases construing the Act. Id. at 831
(citing U.S. v. Darby, 312 U.S. 100 (1941), and Jewell
Ridge Coal Corp. v. Local 6167, UMW, 325 U.S. 161
(1945)). Justice Frankfurter coauthored a book strongly
criticizing Federal courts’ use of injunctions in labor dis-
putes and, as a law professor, played an important role in
the drafting of the Norris-LaGuardia Act, which sought
to limit the use of such injunctions. Nonetheless, he not
only participated in one of the leading cases construing
the Act, but also wrote the Court’s opinion in the case.
409 U.S. at 831–832 (citing U.S. v. Hutcheson, 312 U.S.
219 (1941)). And Chief Justice Hughes, before he was
appointed to the Court, wrote a book in which he ex-
pressed reservations about the Court’s holding in Adkins
v. Children’s Hospital, 261 U.S. 525 (1923). Nonethe-
less, he participated in a case in which a closely divided
Court overruled Adkins. 409 U.S. at 832–833 (citing
West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)).
The uniform position taken by Federal judges is even
more appropriate for officials in administrative agencies,
such as the NLRB. The Supreme Court has made clear
that “[t]he power of an administrative agency to adminis-
ter a congressionally created . . . program necessarily
requires the formulation of policy and the making of
rules to fill any gap left, implicitly or explicitly, by Con-
gress.” Morton v. Ruiz, 415 U.S. 199, 231 (1974). Un-
der our Constitution, the President has authority to ap-
point executive branch officials to positions, such as
those on the NLRB, whose views coincide with those of
the President on matters of policy left open by control-
ling statutes. As the Court explained in Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 865–866 (1984),

[A]n agency to which Congress has delegated policy-
making responsibilities may, within the limits of that
delegation, properly rely upon the incumbent admini-
stration’s views of wise policy to inform its judgments.
While agencies are not directly accountable to the peo-
ple, the Chief Executive is, and it is entirely appropriate
for this political branch of the Government to make
such policy choices—resolving the competing interests
which Congress itself either inadvertently did not re-
solve, or intentionally left to be resolved by the agency
charged with the administration of the statute in light of
everyday realities.

Thus, under Federal labor law, the President is entitled
to appoint individuals to be Members of the Board who
share his or her views on the proper administration of the
Act and on questions of labor law policy left open by
Congress. That process would be frustrated if the ex-
pression of views on such questions4 were considered
disqualifying or grounds for recusal when cases raising
those questions arose before the Board. There are thus
sound policy reasons rooted in Federal administrative
law for making a distinction between expressions of
opinion about policies and expressions of opinions about

4 Of course, statements made as a scholar, seeking to further mean-
ingful and wide-ranging analysis of the law, or as an advocate, repre-
senting particular clients, may not be the most accurate indicators of
potential administrators’ views on policy questions that may arise be-
fore them should they be appointed. Views expressed in other contexts
may be more reliable indicators.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 242
the facts of a particular dispute. The Federal courts have
recognized this and made clear that “statements on a pol-
icy issue related to [a] dispute” leave an adjudicatory
official “capable of judging a particular controversy
fairly on the basis of its own circumstances.” Staton v.
Mayes, 552 F.2d 908, 914 (10th Cir. 1977), cert. denied
434 U.S. 907 (1977). Thus, “[w]hether the [administra-
tive] official is engaged in adjudication or rulemaking,
mere proof that she has taken a public position, or has
expressed strong views, or holds an underlying philoso-
phy with respect to an issue in dispute cannot overcome”
the presumption that he or she is “objective and ‘capable
of judging a particular controversy fairly on the basis of
its own circumstances.’” Steelworkers v. Marshall, 647
F.2d 1189, 1208 (D.C. Cir. 1980) (quoting U.S. v. Mor-
gan, 313 U.S. 409, 421 (1941)), cert. denied 453 U.S.
913 (1981).
Third, in Aramark and the instant case, the Moving
Parties ask that I recuse myself on the grounds that local
labor organizations affiliated with the Service Employees
International Union (SEIU) are parties to the cases. Prior
to the commencement of my service on the Board, I was
employed by and served as counsel to the SEIU. I re-
signed that position and ceased all such representation
effective April 4, 2010, prior to being sworn in as a
Member of the Board. Pursuant to the President’s Ex-
ecutive Order and Title 5 of the Code, I have pledged to
recuse myself from all cases to which SEIU is a party for
a period of 2 years subsequent to April 5, 2010. That
pledge, however, does not require me to recuse myself
from all cases in which local unions affiliated with the
SEIU are parties.
SEIU is a separate and distinct legal entity from the
many local labor organizations affiliated with SEIU. The
courts have clearly distinguished local unions as
autonomous entities separate and apart from international
unions with which they are affiliated. “Since the Coro-
nado Coal cases, Coronado Co. v. United Mine Workers,
268 U.S. 295, 299 (1925), and United Mine Workers v.
Coronado Co., 259 U.S. 344, 393 (1922), courts have
recognized the fact that subordinate bodies are entities
apart from the parent national or International Union and
not mere arms or branches of the latter.” T. S. Ragsdale
Co. v. Teamsters, 1972 WL 747 at *4 (D.S.C. 1972).
“[F]ederal labor law has steadfastly recognized the sepa-
ration of the International from its local affiliate.” In re
Teamsters Local 890, 265 F.3d 869, 874–875 (9th Cir.
2001). Federal courts have held in a variety of contexts
that “[t]he International Union is a separate body from
the local.” Shimman v. Frank, 625 F.2d 80, 97 (6th Cir.
1980). Most importantly for our purposes here, the Fed-
eral courts and the NLRB have recognized that the locals
and the internationals “are separate ‘labor organizations’
within the meaning of . . . the National Labor Relations
Act.” U.S. v. Petroleum Workers, 870 F.2d 1450, 1452
(9th Cir. 1989). “Local unions elect their own officers,
pass their own by-laws, transact business and discipline
members.” Shimman, 625 F.2d at 97. Indeed, the auton-
omy of local unions is guaranteed by Federal law, which
requires that their officers be elected in a secret-ballot
vote of the members and prevents any international un-
ion, with which the local union may be affiliated, from
assuming control of the local except under specified cir-
cumstances. See 29 U.S.C. §462 and 481. Although the
relationship between international unions and affiliated
local unions is often cooperative, it sometimes results in
conflict between the distinct organizations. See Petro-
leum Workers, 870 F.2d at 1454 (“[I]nternational and
local unions are frequently in adversarial positions. They
often engage in lawsuits, internal protests, and complaint
proceedings against one another.”); see, e.g., Carpenters
Local 1219 v. Carpenters, 493 F.2d 93 (1st Cir. 1974)
(involving an alleged failure of the international to sup-
port a local union in a jurisdictional dispute).
In particular, local labor organizations affiliated with
SEIU are governed by their own elected officers pursuant
to their own constitutions, serve as the exclusive repre-
sentative of employees under the National Labor Rela-
tions Act, sign collective-bargaining agreements, and
administer and enforce those agreements. Many local
unions affiliated with the SEIU have their own in-house
legal staffs (in some cases consisting of a number of
lawyers) and, in almost all cases of which I am aware,
local unions affiliated with the SEIU have their own out-
side counsel if they do not employ counsel in-house.
Moreover, over 150 local labor organizations are af-
filiated with SEIU. In the course of my service as Asso-
ciate General Counsel to SEIU, I had no dealings what-
soever with all but a small handful of those local organi-
zations. During the entire time I served as counsel to
SEIU, except for a brief period of time between 2005 and
2006, I did so on a part-time basis. For all but the last 7
months of the time that I served as associate general
counsel to SEIU, I was not based in the Union’s Wash-
ington, D.C. headquarters, but rather first in Los Angeles
and then in Chicago and, except for a very brief period in
Chicago, I did not work in a SEIU office. Thus, I did
not, except in rare instances, even have casual contact
with local union officers or staff. For these reasons, my
obligation to recuse myself does not extend to all cases
SERVICE EMPLOYEES LOCAL 121RN (POMONA VALLEY HOSPITAL MEDICAL CENTER) 243
in which a local labor union affiliated with SEIU is a
party.5
That said, my obligation to recuse myself will extend
to some cases in which a local labor union affiliated with
SEIU is a party. As the Moving Parties point out, I have
in the past served as counsel to a few local labor unions
affiliated with SEIU. In the pledge I took pursuant to
Executive Order 13490, I pledged to recuse myself for a
period of 2 years from participation in any specific mat-
ter in which a former client that I represented during the
2 years prior to becoming a Board Member is a party,
including cases in which a local labor union affiliated
with SEIU that I represented during the 2 years prior to
becoming a Board Member is a party. My pledge also
extends to any case in which an employee of SEIU, i.e.,
SEIU in-house counsel, represents a local union during
my first 2 years of service on the Board. However, the
local unions involved in the subject cases, Service Work-
ers United in Aramark and SEIU Local 121RN in the
instant case, do not fall into either of those categories. I
have never, to the best of my knowledge, represented
either of those organizations, and further, those local
unions are not represented by an employee of SEIU. I
may be required to recuse myself in other cases when the
particular facts and circumstances extend beyond the fact
that one of the parties is a local union affiliated with
SEIU. But the Moving Parties here cite no such facts or
circumstances requiring my recusal, and I am aware of
none.
After I was nominated to serve as a Member of the
NLRB, I consulted the designated agency ethics official
pursuant to 5 CFR §2635.107(b) in order to determine
what the scope of my recusal obligation would be in rela-

5 The Aramark Moving Party’s suggestion in a footnote, motion at 2
fn. 1, that the Supreme Court’s decisions in Locke v. Karass, 129 S.Ct.
798 (2009), and Lehnert v. Ferris Faculty Assn., 500 U.S. 507 (1991),
suggest a different conclusion, is misplaced. The question in those
cases was what portion of affiliation fees paid by local unions to an
international union was “related to collective bargaining” and thus
could be charged to nonmember fee payers represented by the local.
Locke, 129 S.Ct. at 803. The language from Locke quoted by the Mov-
ing Party merely suggests that affiliation with an international union is
a form of insurance policy under which a local pays an affiliation fee
on a continuous basis but calls on the international union for assistance
only when needed. The decisions in no way suggest the conclusion
advanced by the Moving Party—that the “SEIU . . . is inextricably
intertwined with all litigation involving its local unions.” Both Locke
and Lehnert are about occasional assistance, of various kinds, under
unusual circumstances—as under an insurance policy—not “all litiga-
tion.” Furthermore, nothing in Locke or Lehnert suggests that SEIU or
any other international union controls or is in any way involved in
litigation involving affiliated local unions beyond providing some
financial support to some such litigation. Finally, the Moving Party
does not even argue that the cases somehow suggest that I was person-
ally involved in any litigation involving any local union affiliated with
SEIU.
tion to local unions affiliated with SEIU, should I be con-
firmed or otherwise serve on the Board. I was informed
that I would be required, for a period of 2 years after
commencement of my service on the Board, to recuse
myself from participation in any particular matter involv-
ing as a party a local affiliated with SEIU that I had rep-
resented during the 2 years prior to the commencement
of my service on the Board. I was informed that I would
not be required to recuse myself from participation in
any particular matter simply because a local union affili-
ated with SEIU was a party. I was also informed that
this was consistent with past agency practice established
in consultation with the Office of Government Ethics.
Fourth, in Aramark and the instant case, the Moving
Parties ask that I recuse myself on the grounds that I
have had a close association with the union party’s coun-
sel in those cases. No evidence whatsoever is offered of
any form of association between such counsel and me.
In Aramark, the union is represented by Nicole M. Blis-
senbach. Blissenbach is, in turn, associated with the firm
of Miller, O’Brien. I have not had any form of associa-
tion with Blissenbach. I have, in my prior capacity as
associate general counsel to SEIU, spoken to a lawyer
associated with Miller, O’Brien about matters wholly
unrelated to the case at issue. Those conversations oc-
curred at least 5 years ago. I do not believe I have ever
met any lawyer associated with the firm face-to-face or
been in its offices.
In the instant case, the local union is represented by
Matthew Gauger. Gauger is, in turn, associated with the
firm of Roger, Rosenfeld, and Weinberg. I believe I may
have met Gauger at some time in the past, but have never
had any form of professional or personal association with
him. In my prior capacity as Associate General Counsel
to SEIU and the AFL–CIO, I have spoken to lawyers
associated with Roger, Rosenfeld and Weinberg (or its
predecessor Van Bourg, Weinberg, Roger & Rosenfeld)
concerning specific legal issues unrelated to this case. In
at least one case, I served as co-counsel with attorneys in
the firm. Evergreen New Hope Health & Rehabilitation
Center v. NLRB, 65 Fed. Appx. 624 (9th Cir. 2003).
These professional contacts and relationships do not
create a basis for recusal in all cases in which the firms
appear on behalf of a party. See U.S. v. Alabama, 828
F.2d at 1543 fn. 46 (“The evidence . . . fails to demon-
strate the kind of close personal ties that would affect the
trial judge’s judgment.”). The Federal courts have made
clear that ordinary professional relationships and even
personal friendship between judges and lawyers are not
grounds for disqualification. For example, the Seventh
Circuit observed, “In today’s legal culture friendships
among judges and lawyers are common. They are more
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 244
than common; they are desirable. A judge need not cut
himself off from the rest of the legal community. . . .
Many courts, therefore have held that a judge need not
disqualify himself just because a friend—even a close
friend—appears as a lawyer.” U.S. v. Murphy, 768 F.2d
1518, 1537–1538 (7th Cir. 1985), cert. denied 475 U.S.
1012 (1986).
Finally, in all the cases, the Moving Parties ask that I
recuse myself on the grounds that lawyers employed by
the National Right to Work Legal Defense Foundation
(the Foundation) represent the Moving Parties. The
claim here is that I have appeared in cases where my
opposing counsel was a lawyer on the staff of the Foun-
dation and that I have publicly expressed hostility toward
the Foundation. In addressing this aspect of the motions,
it is important to recognize that the Foundation is not a
party in any of the subject cases. Moreover, counsel to
the Moving Parties in each of these cases is not the
Foundation. Rather, individual lawyers are counsel in
these cases.6 The Moving Parties do not and cannot al-
lege that I have ever expressed any form of hostility to-
ward the individual lawyers who represent the Moving
Parties in these cases. To be clear, I harbor no bias or
hostility of any kind against attorneys employed by the
Foundation.
Moreover, even if the Foundation itself were counsel
in any of these cases, and even if, as alleged by the Mov-
ing Parties, I have expressed hostility toward the Founda-
tion (which I have not), recusal would not be required
under the statutory standard applicable to Art. III judges
(which the Moving Parties argue applies here). Although
“personal bias or prejudice concerning a party” is
grounds for recusal under 28 U.S.C. §455(a) (emphasis
added), “bias against a lawyer, even if found to exist,
without more is not bias against his client.” In re Drexel
Burnham Lambert, Inc., 861 F.2d 1307, 1314 (2d Cir.
1988), cert. denied 490 U.S. 1102 (1989).
The courts have “drawn a sharp distinction between al-
leged hostility between judge and party and alleged hos-

6 In the Charging Parties’ exceptions and brief in support of excep-
tions, pp. 35–36, in United Steel, Paper & Forestry, Rubber, Mfg.,
Energy, Allied Industrial & Service Workers International Union
(Cequent Towing Products), Case 25–CB–8891, a pending case in
which a motion to recuse has been filed, counsel employed by the
Foundation explain:
The ULP charges in these cases were filed by the individual Charging
Parties, acting through their retained attorneys William Messenger or
Glenn Taubman. . . . The Foundation filed no charges in these cases.
Indeed, the Foundation is not an attorney, and it is not a law
firm; it does not represent anyone, nor does it have clients. The
Foundation provides employees with free legal aid, through staff
attorneys who are like any other attorneys—their obligations run
to their individual clients, not the Foundation.
tility between judge and attorney.” U.S. v. Helmsley, 760
F.Supp. 338, 342 (S.D.N.Y. 1991), affd. 963 F.2d 1522
(2d Cir. 1992). “Except in ‘extreme’ and ‘rare’ cases,
. . . the appearance of hostility on the part of the judge
toward an attorney has been ruled an insufficient basis
for recusal.” Id. at 342 (citing Panzardi-Alvarez v.
United States, 879 F.2d 975, 984 (1st Cir. 1989), cert.
denied 493 U.S. 1082 (1990)). See In re Cooper, 821
F.2d 833, 838–839, 841 (1st Cir. 1987); In re Beard, 811
F.2d 818, 830 (4th Cir. 1987); Moore v. McGraw Edison
Co., 804 F.2d 1026, 1032 (8th Cir. 1986); U.S. v. Burt,
765 F.2d 1364, 1368 (9th Cir. 1985); Gilbert v. Little
Rock, 722 F.2d 1390, 1398–1399 (8th Cir. 1983), cert.
denied 466 U.S. 972 (1984); U.S. v. DeLuca, 692 F.2d
1277, 1282 (9th Cir. 1982); see also In re IBM Corp.,
618 F.2d 923, 932 (2d Cir. 1980) (no basis for finding
personal prejudice against party, as distinct from its
counsel); U.S. v. Wolfson, 558 F.2d 59, 63 fn. 12 (2d Cir.
1977) (friction between judge and counsel not indicative
of bias against defendant). As the court in Helmsley, 760
F.Supp. at 342, stated:

Courts have ruled that the appearance of judicial hostil-
ity or favoritism must be toward a party to warrant
recusal. Thus, where a judge had disparaged an attor-
ney’s testimony, called him an “untrustworthy manipu-
lator,[”] called his partner a “name dropper” and de-
scribed their conduct as “dirty work,” recusal was not
called for because even such an attitude toward the at-
torney did not reasonably call into question the judge’s
ability to rule impartially as to the attorney’s client. In
re Cooper, 821 F.2d at 841. See also United States v.
Burt, 765 F.2d at 1368 (judge’s openly disparaging
treatment of attorney did not justify recusal without
evidence of bias toward party).

The same rule has been applied in a case alleging bias
against a legal defense fund and attorneys associated
with it. In Davis v. Board of School Commissioners of
Mobile County, 517 F.2d 1044 (5th Cir. 1975), cert. de-
nied 425 U.S. 944 (1976), parties alleged that the judge
was biased against them because he was biased and
prejudiced against “anyone or any group . . . presenting
[civil rights] claims through attorneys employed by
and/or associated with the N.A.A.C.P. Legal Defense and
Educational Fund, Inc.” Id. at 1053. It was further al-
leged that the judge had “formed the opinions through
extra-judicial sources” that plaintiffs in civil rights ac-
tions “do not have valid grievances but have been solic-
ited to present unwarranted claims,” and that civil rights
claims presented by Legal Defense Fund attorneys are
not presented in good faith, but “rather for invalid and
unconscionable purposes.” Id. at 1053–1054. The court
SERVICE EMPLOYEES LOCAL 121RN (POMONA VALLEY HOSPITAL MEDICAL CENTER) 245
rejected what it characterized as plaintiffs’ “imputation
theory,” finding the alleged “lawyer-to-client construc-
tive bias” to be too attenuated to require disqualification.
Id. at 1050, 1051. As in Davis, in the absence of even
alleged hostility toward the parties in the instant cases,
the allegation that I have expressed hostility toward the
Foundation does not (even if it were true) justify my
recusal in these cases.
While many of the prior cases involved alleged hostil-
ity based on interactions inside the courtroom, the same
rule has been applied in cases where the alleged hostility
was grounded on conduct that predated the judge’s ser-
vice on the bench or took place outside the context of
participation in a particular case. See, e.g., U.S. v.
Helmsley, 760 F.Supp. at 342–345; Leistikow v. Hoosier
State Bank of Indiana, 394 N.E.2d 225, 227 (Ind. App.
1979); Johnston v. Dakan, 9 Cal. App. 522, 525 (1908).
In McBeth v. Nissan Motor Corp., 921 F.Supp. 1473
(D.S.C. 1996), a judge had made a speech at an auto torts
seminar 2 years earlier in which he allegedly made com-
ments “impugn[ing] the intelligence and integrity of de-
fense attorneys.” Id. at 1479. Those comments were not
found to be sufficient to warrant recusal of the judge in a
products liability case against a car manufacturer. In so
finding, the court stated that “remarks expressed outside
of court do not provide a basis for recusal unless the
movant shows actual bias against the particular party
involved.” Id. at 1481. The Moving Parties in the in-
stant cases have not suggested that I have any bias
against the specific parties at issue, and I have none.
The courts have also expressed concern that granting
motions to recuse based on alleged hostility toward
counsel would give lawyers a type of “preemptory chal-
lenge.” Davis, 517 F.2d at 1050. “Lawyers, once in con-
troversy with a judge, would have a license under which
the judge would serve at their will.” Id. Such a rule
would permit parties to force judges to recuse themselves
through tactical selection of counsel. As stated in Shakin
v. Board of Medical Examiners, 254 Cal. App. 2d 102,
118–119 (1967), “If we must presume bias and prejudice
toward the client because of ill-feeling toward the attor-
ney, it would establish a dangerous rule, by which the
attorney . . . could have his case transferred to another
judge by quarreling with the court. We prefer to believe
that a judge may . . . cordially dislike and even distrust
an attorney, and yet be capable of doing exact justice
toward his client.”
In addition, even if the Foundation were a party in any
of the subject cases, I have no hostility toward the Foun-
dation and have expressed none, but rather have ex-
pressed disagreement with positions advanced by the
Foundation. Such disagreement on policy questions is
not grounds for recusal, as fully explained above.
I have in the past expressed disagreement with posi-
tions advanced by lawyers employed by the Foundation
in litigation concerning Federal labor policy. I have ex-
pressed that disagreement openly and in appropriate pub-
lic forums. I have never disparaged any lawyer em-
ployed by the Foundation or any other individual associ-
ated with the Foundation. My expression of views on
these questions of Federal labor policy long predated my
service on the Board (the two articles cited by the Mov-
ing Parties were published in 1998 and 2005). In fact,
the two articles cited by the Moving Parties refer to the
Foundation only glancingly in the course of discussions
of developments in specific lines of labor law doctrine.
In the first, written over 10 years ago, I implicitly criti-
cized the Supreme Court’s labor case selection, not the
Foundation, referring to the National Right to Work
Committee7 only as the entity that had urged the Court to
develop the doctrine under discussion. Becker, “Elec-
tions Without Democracy: Reconstructing the Right to
Organize,” New Labor Forum (Fall/Winter 1998) at 108.
Similarly, in the second article, written 5 years ago, my
coauthor and I criticized the Board’s and its General
Counsel’s case selection, referring to the Foundation,
again, as having developed the “litigation strategy” that
brought the cases before the General Counsel and the
Board. Hiatt & Becker, “At 70, Should the National La-
bor Relations Act Be Retired?,” 26 Berkeley J. Emp. &
Lab. L. 293, 298 (2005). The article cites a report on the
origins of the Foundation and its funding, as well as a
decision by Chief Judge Posner of the Seventh Circuit
concerning the Foundation, only as a means of question-
ing whether the Board’s and General Counsel’s case se-
lections, “spurred by the National Right to Work Foun-
dation,” were consistent with the Act and its underlying
purposes. Id. at 298, 301. The two articles represent
pieces of public advocacy addressing issues of labor law
policy. Each identifies the Foundation (or the Commit-
tee) as a strong advocate of policies criticized in the arti-
cles. Each was written when I was an advocate for labor
organizations, and each clearly identifies me as such an
advocate. See 26 Berkeley J. Emp. & Lab. L. at 293;
New Labor Forum (Fall/Winter 1998) at 174.
Any strong language I used in expressing views re-
garding the policy questions discussed in the two articles
does not remove this situation from the ordinary rule
discussed above. The fact that public statements about
contested issues of policy made by judges before they

7 The Moving Parties point out that the Committee and the Founda-
tion are “sister organizations.” Aramark, Petitioner’s Motion to Recuse
at 10 fn. 4.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 246
assumed the bench are “strongly-worded,”8 wrapped in
“indignation,”9 or expressed “with vehemence”10 does
not make the statements grounds for recusal. As set forth
above, the 11th Circuit has observed that the “fact that
prior to joining the bench a judge has stated strong be-
liefs does not indicate that he has prejudged the legal
question before him.” U.S. v. Alabama, 828 F.2d at
1544.
As the Moving Parties also note, I served as counsel in
two cases in which parties opposed to my client were
represented by lawyers employed by the Foundation.
The first, Gilpin v. American Federation of State,
County, & Municipal Employees, 875 F.2d 1310 (7th Cir.
1989), cert. denied 493 U.S. 917 (1989), was over 20
years ago. To the best of my recollection, my involve-
ment in the matter ended with the Court of Appeals’ de-
cision in 1989. The second, West v. SEIU Local 434B,
No. 01-10862 CAS (C.D.Cal.), was over 5 years ago (the
last entry in the Court’s docket sheet is on December 3,
2004). In fact, my active involvement in the case ended
2 years earlier, in December 2002, when the Court ap-
proved a settlement and dismissed the case. I had a cor-
dial, professional relationship with the lawyers employed
by the Foundation who represented the plaintiffs in those
two cases and the Moving Parties do not suggest other-
wise. As noted above, the second case was terminated as
a result of a settlement agreement my co-counsel and I
negotiated with a lawyer employed by the Foundation.
Conclusion
The law requires analysis from the “perspective of a
reasonable person with knowledge of the relevant facts.”
5 CFR § 2635.101(b)(14). Such a “reasonable person”
appearing before the Board will distinguish between the
roles I played as an advocate and a scholar in the past
and the position I now hold as a Member of the NLRB. I
take this opportunity to assure the Moving Parties in
these cases, as well as all other parties to cases that may
come before me, that I too understand that difference and
can and will, in the words of the oath I took upon assum-
ing this position, “well and faithfully discharge the duties
of the office on which I am about to enter.”
For the reasons explained above, I decline to recuse
myself from participation in all cases subject to these
motions with the exception of Dana Corp., Case 7–CA–
46965, et al.

8 National Rifle Assn. v. City of Evanston, 2008 WL 3978293 at *2.
9 Baskin v. Brown, 174 F.2d 391, 394 (4th Cir. 1949).
10 Id.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated 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 restrain or coerce you in the exercise of
your right to refrain from protected union activity, by
circulating flyers that threaten employees with adverse
consequences if they fail to continue to pay dues and fees
under an expired union-security clause.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights set forth above.

SERVICE EMPLOYEES INTERNATIONAL UNION,
NURSES ALLIANCE, LOCAL 121RN
Lisa E. McNeill, Esq., for the General Counsel.
Glenn M. Taubman, Esq. (National Right to Work Legal De-
fense Foundation, Inc.), of Springfield, Virginia, for the
Charging Party.
Matthew J. Gauger, Esq. (Weinberg, Roger & Rosenfeld), of
Los Angeles, California, for the Union.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
was tried in Los Angeles, California, on September 22, 2008.
The charge was filed on October 30, 2007,1 by Carole Jean
Badertscher, an individual (the Charging Party) and the com-
plaint was issued on June 30, 2008. The complaint alleges that
Service Employees International Union, Nurses Alliance, Local
121 RN (the Union) violated Section 8(b)(1)(A) by informing
unit employees of the existence of a law enacted by California
forbidding “professional strikebreakers” when that law inter-
feres with the rights of employees and employers under the Act
and therefore is preempted by the Act. The complaint also
alleges that the Union violated Section 8(b)(1)(A) by telling
employees that their continued employment under a union-
security provision of an expired contract was conditioned upon
their continued payment of union dues.

1 All dates are in 2007, unless otherwise indicated.
SERVICE EMPLOYEES LOCAL 121RN (POMONA VALLEY HOSPITAL MEDICAL CENTER) 247
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Union, and the Charging Party,
I make the following
FINDINGS OF FACT
I. JURISDICTION
Pomona Valley Hospital Medical Center (the Hospital), a
corporation, provides patient care services at its facility in
Pomona, California, where it annually derives gross revenues in
excess of $1 million and annually purchases and receives goods
valued in excess of $50,000 directly from points outside the
State of California. The Union admits and I find that the Hos-
pital is engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union represents a unit of about 1000 registered nurses
at the Hospital. The Union and the Hospital were parties to a
collective-bargaining agreement effective, May 28, 2004,
through May 27, 2007. The agreement contained union secu-
rity and dues-checkoff provisions. That contract was extended
month-to-month until August 26, when the Union gave the
Hospital a 10-day written notice of its desire to terminate the
contract extension. On August 27, the Union gave the Hospital
a 10-day strike notice and a 1-day strike occurred on September
6. The Union communicated with the nurses and provided
them with information concerning its view of the negotiations.
Also participating in the discussion was a group of nurses who
called themselves “Nurses for a Union Free [Hospital]” (the
union free nurses.) This group distributed a leaflet on Septem-
ber 11 responding to the Union’s literature and arguing against
support for the Union. The union free nurses pointed out how
they will remember the fractured friendships and aching hearts
that were caused when “outside forces” collided with the Hos-
pital’s “family values.” The leaflet continued:

Ways to demonstrate your change of heart:
Sign the petition to de-certify [the Union] as the bar-
gaining entity for the RNs at [the Hospital].
Send a letter to the Union rescinding your union mem-
bership.
Notify [the Union] and [the Hospital] HR that as there
is no longer a contract in effect, you do not intend to pay
union dues.

On September 12, the Hospital distributed a memorandum to
all registered nurses that read:

Several nurses have asked whether they must still be SEIU
members or pay Union dues/fees. The answer is “No.” Since
the Union has terminated the contract the “Union Security”
provisions which contain those obligations is not in effect.
Therefore, at this time, nurses have a choice to pay Union
dues or not to pay Union dues. That decision is entirely up to
each individual nurse. If a nurse no longer wishes to be a
SEIU member, he or she should write a letter to that Union
resigning from membership. If a nurse no longer wants dues
deducted from their paycheck, he or she should write Human
Resources a letter revoking such authorization.

On September 14, the Union gave the Hospital another 10-day
strike notice and on September 26, a 5-day strike happened.
The Union continued to communicate with the nurses concern-
ing its view of the status of negotiations. Likewise the union
free nurses also continued their communications. They distrib-
uted a leaflet criticizing the Union; the leaflet ended:

This is the best chance to end this!
Stop your union dues and resign from the union.
Sign and mail the card to call for an election.

A 10-day strike was planned for the holiday period, but this
strike was canceled after the Union and the Hospital reached a
new contract. Meanwhile, a decertification petition was filed
on December 13; the Union won the election and remained the
bargaining representative of the nurses. During the labor dis-
pute about 30–50 unit employees resigned their membership in
the Union and about 50–100 unit employees stopped paying
dues and fees.
B. Professional Strikebreaker Allegation
California Labor Code, Sections 1132–1133, defines a “pro-
fessional strikebreaker” as a person, excluding supervisory
personnel, who, over a 5-year period on at least three or more
occasions for two or more employers, seeks and obtains em-
ployment as a replacement for employees who had been
locked-out by the employer or who are engaged in a strike
against the employer. “Strike” is defined as any concerted act
of more than 50 percent of the bargaining unit employees in a
lawful refusal to perform work. The statute forbids employers
from hiring “professional strikebreakers.” Criminal sanctions
and/or fines can be imposed against both employers and em-
ployees found to have violated the statute. During the two
strikes described above the Hospital hired what the Union be-
lieved were “professional strikebreakers” and employees raised
questions to the Union about them.
In October the Union posted at the Hospital and/or distrib-
uted to employees of the Hospital a flyer that reads, in pertinent
part, as follows:

Professional Strike Breakers
Who they are and what the law says about them

It is illegal in California to hire a professional strike
breaker or to work as a professional strike breaker. A pro-
fessional strikebreaker is a person who, in the last five
years:

 Worked on at least three occasions during a
strike or lockout to replace a striking or
locked out employee.
 And this work was done for two or more
employers.

Any nurse who meets this criteria is considered a pro-
fessional strike breaker. If a nurse meets this criteria and
then works for Pomona Valley Hospital during a strike,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 248
that nurse has violated California law and is subject to a
fine of up to $1,000 and up to 90 days in jail.
Any employer that hires a professional strikebreaker
also violates the law and is subject to a fine of up to
$1,000 and up to 90 days in jail. “Employer” is defined as
a person, partnership, firm, corporation, association, or
other entity which employs any person or persons to per-
form services for a salary, and includes any person
. . . acting as an agent of an employer, directly or indi-
rectly.

On October 3, the Union posted this same message on its web-
page. The union free nurses responded by distributing a leaflet
referring to the strikebreaker law and containing the following:

The legislation referred to is unenforceable because it
is federally preempted and therefore unconstitutional.
A similar law in Minnesota banning the hiring of per-
manent strike replacements was struck down some years
ago.
Employment relationships are governed by the National
Labor Relations Act (federal law), and states cannot inter-
fere.
If states try to interfere (via one-sided laws like the Cali-
fornia law the [the Union] menacingly cites), the state treads
on the federal right to hire and to work.
It is for that reason that courts have struck down such
laws as federally preempted and unconstitutional.
A decision of the US Court of Appeals in Employers As-
sociation, Inc. v. United Steelworkers of America, 32 F.3d
1297 (8th Cir. 1994) struck down such laws.
So are you getting tired of half truths and purposeful de-
ception?

The leaflet went on to encourage the nurses to continue in efforts
to decertify the Union.
On October 15, the Union posted a message on its web page
that contained the following:

Mr. Inge, Vice President of Human Resources, has disputed
our information regarding the law and strike breakers. Our
attorney has researched information on strike breakers and
the union stands by her information. I am glad to know that
Mr. Inge is reading the Local 121RN web site.

There is no evidence that any unit employees met the definition
of “professional strikebreaker.” However, in the past employers
with whom the Union has a collective-bargaining relationship
have used third employers to supply employees to work during a
strike; those employees may have met the statutory definition of
strikebreaker.
Analysis
I first emphasize the narrowness of the factual setting in this
case. There has been no specific finding to date that the profes-
sional strikebreaker law is, in fact, preempted by the Act. As the
Union points out in its brief, at the time the Union publicized the
professional strikebreaker law the precedent in the Ninth Circuit
was Chamber of Commerce v. Lockyer, 463 F.3d 1076 (2006),
reversed Chamber of Commerce v. Brown, 128 S.Ct. 2408
(2008). Although not directly on point, that precedent lends cre-
dence to the Union’s contention that the issue of preemption was
still very much an open matter at the time it distributed the in-
formation. Moreover, the evidence shows that the Union merely
accurately advised employees of the existence of the professional
strikebreaker law; it was unaccompanied by any threats that the
Union would seek to enforce the law. Finally, the information
was disseminated to employees who, upon reading the flyers or
the web page, could safely conclude that they were not covered
by the law; there is no evidence that any “professional strike-
breaker” that was employed or that was contemplating employ-
ment at the Hospital saw the Union’s information.
The General Counsel and the Charging Party argue that I
should find that the law is preempted and then look back at the
statements made by the Union about the law and conclude that
they restrained and coerced employees in violation of their Sec-
tion 7 rights. I decline to do so. In Bill Johnson’s Restaurant v.
NLRB, 461 U.S. 731 (1983), the Supreme Court held that the
Board could not enjoin a well-founded lawsuit even it was filed
for a retaliatory purpose. The Court made clear, in footnote 5,
however, that the Board may order a respondent to cease prose-
cuting a lawsuit that is preempted by the Act. Id. at 737 fn. 5. In
Loehman’s Plaza, 305 NLRB 663 (1991), a footnote 5 case, the
Board examined the Supreme Court precedent concerning the
preemption of lawsuits directed at Section 7 activity and stated:

We, therefore, must address whether, and also when, state
court lawsuits seeking to enjoin peaceful union picketing or
leafleting are preempted by Federal law. [Emphasis added.]

Id. at 669. The Board concluded that the precomplaint mainte-
nance of lawsuit was not a violation of the Act. The Board ex-
plained that once the General Counsel issued a complaint, how-
ever, the issue of preemption was sufficiently resolved and that
the continuation of the lawsuit after that point was unlawful. In
Allied Trades Council (Duane Reade, Inc.), 342 NLRB 1010
(2004), another footnote 5 case, the Board concluded that the
respondent violated the Act by maintaining a lawsuit after the
Regional Director issued a decision. Of course, there is no law-
suit involved in this case and the Charging Party argues that
therefore the cases do not apply. But it would be incongruous to
hold that legal proceedings to enforce the strikebreaker law
would not necessarily be unlawful ab initio but the mere recita-
tion of that law would be unlawful. Rather, the Constitutional
concerns underlying the cases described above exist in this case.
The people of California through their elected representatives are
entitled to test the outer limits of the preemption doctrine and
they consequently are entitled to publicize the laws they enact, at
least until struck down by superior authority. At the least the
Board must have a healthily respect for other constitutional proc-
esses and allow them to run their course before declaring the
mere publication of this law to be an unfair labor practice. This
means, in my view, that before the Board can find an unfair labor
practice based on a law or lawsuit that may be preempted there
must be some resolution of the preemption issue before the con-
duct alleged can be an unfair labor practice. Until there is some
specific resolution of the preemption issue the parties should be
allowed to do what they did in this case: the Union cited the
strikebreaker law and the union free nurses responded that in
their view the law was preempted. It follows that I am without
SERVICE EMPLOYEES LOCAL 121RN (POMONA VALLEY HOSPITAL MEDICAL CENTER) 249
jurisdiction to now resolve the preemption issue because no un-
fair labor practice would result regardless of how I decided the
preemption issue at this point.
The General Counsel cites New Fairview Hall Convalescent
Home, 206 NLRB 688 (1973), enfd. sub nom. Donovan v. NLRB,
520 F.2d 1316 (1975). In that case the employer advised em-
ployees of a state law that forbid certain hospital employees from
striking and warned those employees if they struck they would be
disciplined. The judge and the Board concluded that the em-
ployer violated Section 8(a)(1) by telling employees that it was
unlawful for them to strike because “[s]uch a State prohibition
applied to Respondent’s employees would interfere with their
rights under Section 7” of the Act. [Emphasis supplied.] Id. at
747. I conclude that New Fairview is not dispositive of the issue
in this case. While it is correct that in New Fairview there was no
determination that the State law had been preempted and there-
fore was inoperative prior to the employer’s statement to em-
ployees, it does not appear that the issue had been raised or liti-
gated in that case. And of course Section 8(b)(1)(A) differs from
Section 8(a)(1) in that Section 8(b)(1)(A) does not forbid inter-
ference with Section 7 rights. In any event, New Fairview was
decided before the decisions described above. Because there had
been no determination that the professional strikebreaker law was
preempted at the time the Union publicized its existence, I cannot
conclude that the Union’s conduct was unlawful.
Assuming without deciding that the professional strikebreaker
law is preempted and that this conclusion can be applied retroac-
tively, the General Counsel’s case still fails because he has not
shown that the Union’s statements would reasonably tend to
restrain or coerce employees to whom the message was dissemi-
nated. This is so because he has not established that any em-
ployee who met the definition of professional strikebreaker saw
the Union’s propaganda. Under these circumstances it is difficult
to conclude that the propaganda could reasonably tend to restrain
or coerce employees in their right to continue to work during a
strike. The employer in New Fairview, in contrast, clearly told its
employees that under the law it was unlawful for them to strike.
Here, the Union did not tell employees that it was unlawful for
them to work during a strike; instead the Union told the employ-
ees that it was unlawful for another group of employees—
professional strikebreakers—to work as strike replacements. It
bears repeating that the theory of the complaint is that the Union
violated the Act by its communications with the Hospital’s unit
employees, none of whom met the definition of professional
strikebreaker; indeed, the complaint allegations specifically de-
scribe as unlawful the Union’s communications with “unit em-
ployees.”2 Nor is there evidence that the Union attempted to
mislead the Hospital’s unit employees that the California law
applied to them even if they did were not “professional strike-
breakers.” The General Counsel’s argument to the contrary pre-
sents a different case, one in which the Union attempted to mis-
lead employees into believing that they were professional strike-

2 I reject the General Counsel’s attempt in his brief to expand the na-
ture of the complaint beyond unit employees.
breakers and therefore subject to fines if they exercised their right
to work during a strike.3
I dismiss this allegation of the complaint.
C. Dues Allegation
In mid-October, the Union posted and/or distributed at the
Hospital a flyer that read:

Work with an expired contract . . . What does it
mean?
The hospital and their representatives i.e. Managers, di-
rectors, and anti union nurses have put out misleading and
incorrect information regarding having “NO CONTRACT”
In, truth the NLRA* requires management (Pomona
Valley Hospital) to maintain contract terms and conditions
of employment while it bargains on a new agreement.
Abandoning or changing a pre-existing condition is an un-
fair labor practice (ULP), giving the union a basis for filing
an NLRB charge, calling a ULP strike, or filing a challenge
to a lockout.
YOU CONTINUE TO BE COVERED BY THE
TERMS AND CONDITIONS OF YOUR CONTRACT!
An employer (Pomona Valley Hospital) must maintain
the status quo after the expiration of a collective bargaining
agreement until a new collective bargaining agreement has
been negotiated or the parties have bargained to impasse.
When a contract expires, a union can file a unilateral-
change charge to enforce a term on the agreement that had
been followed by the parties, a past practice independent of
the contract, or a past practice that conflicts with the con-
tract.
Under the NLRA*, dues and fees may be collected back
to the expiration of the collective bargaining agreement
(contract).
Many of you have inquired about the stop dues form be-
ing distributed by the hospital and their representatives.
You may have been mislead into believing that you are not
obligated to pay dues and fees during the period of negotia-
tions. This is untrue and retroactivity may occur prior or
upon ratification of the contract. Please ask yourselves why
all the anti leaders are still paying dues. Could it be they
don’t want the possibility of owing more in a lump sum?
DUE AND FEE OBLIGATIONS REMAIN INTACT
AND MAYBE COLLECTED PRIOR OR UPON
RATIFICATION OF THE CONTRACT.
WHEN YOU ARE NOT A MEMBER IN GOOD
STANDING, YOU FORFEIT YOUR VOICE, RIGHTS TO
PARTICIPATE IN UNION EVENTS AND FORFEIT YOUR
VOTING PRIVILEGES.
*The National Labor Relations Board is an independ-
ent federal agency created by Congress in 1935 to adminis-
ter the National Labor Relations Act, the primary law gov-
erning relations between unions and employers in the pri-
vate sector. The statute guarantees the right of employees to

3 In his brief the General Counsel appears to argue that the Union at-
tempted to mislead the employees by its reference to “nurses” who met
the definition of professional strikebreaker. But of course the employ-
ees who worked as replacements during the strike were also nurses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 250
organize and to bargain collectively with their employers,
and to engage in other protected concerted activity with or
without a union, or to refrain from all such activity.
Analysis
Employees are not required to become or remain full members
of a union. Those who choose to become and remain full union
members are protected under Section 8(a)(3) of the Act. Unions
may require voluntary members to pay dues and fees to obtain
and retain membership. Membership in a union typically entitles
members to participate in union-related matters such as the selec-
tion of union officers, contract ratification, strike votes, and the
like. When an employer and a union have a collective-bargaining
agreement that has a “union security” provision the union may
insist that all employees in the recognized unit to pay dues and
fees regardless of whether or not those employees are voluntary
members of the union. Applying these settled legal principles to
the fact situation in this case, upon the expiration of the collective
bargaining no employee could be compelled to continue to pay
dues under a union-security provision because that obligation
expired with the contract. Mine Workers (Ruberoid Co.), 173
NLRB 87 fn. 2 (1968). However, those voluntary members of
the union might be required to continue to pay dues in order to
retain their union membership.
The issue in this case thus becomes whether the Union threat-
ened employees that they were required to pay dues under a un-
ion-security agreement. In his brief, the General Counsel argues:

In the flyer, the Union’s representation to employees was
that they continued to be covered by the terms and condi-
tions of the terminated CBA, including the dues and fees ob-
ligations under the union-security clause.

But the Union said no such thing. The first portion of the flyer
merely accurately states the general proposition that employers
must maintain existing conditions of employment upon the expi-
ration of a contract. The flyer then continued:

Under the NLRA*, dues and fees may be collected back
to the expiration of the collective bargaining agreement
(contract).
Many of you have inquired about the stop dues form be-
ing distributed by the hospital and their representatives.
You may have been mislead into believing that you are not
obligated to pay dues and fees during the period of negotia-
tions. This is untrue and retroactivity may occur prior or
upon ratification of the contract. Please ask yourselves why
all the anti leaders are still paying dues. Could it be they
don’t want the possibility of owing more in a lump sum?
DUE AND FEE OBLIGATIONS REMAIN INTACT
AND MAYBE COLLECTED PRIOR OR UPON
RATIFICATION OF THE CONTRACT.
WHEN YOU ARE NOT A MEMBER IN GOOD
STANDING, YOU FORFEIT YOUR VOICE, RIGHTS
TO PARTICIPATE IN UNION EVENTS AND FORFEIT
YOUR VOTING PRIVILEGES.

For those unit employees who remained voluntary full mem-
bers of the Union, the foregoing statements are a reasonably
accurate statement of their obligations; to remain full members
of the Union they had to continue to pay dues. While those
dues and fees are not collectible “Under the NLRA” pursuant to
a union-security provision because the contract had expired,
that statement viewed in context is insufficient to threaten em-
ployees with discharge if they failed to make those payments.
The last sentence described above seems directed to those em-
ployees who are voluntary members. While a more complete
description of the law might have included an explanation that
voluntary members could immediately terminate any obligation
to pay dues by resigning their membership from the Union,
certainly the Union had no obligation to give this fuller descrip-
tion without running afoul of the law. Indeed, both the pieces
put out by the Hospital and the union free nurses did not con-
tain a full description of the law either; neither advised the em-
ployees that if they resigned from the Union they would not be
entitled to participate in significant internal union matters such
as contract ratification. The General Counsel cites United Auto
Workers Local 785 (Dayton Forging), 281 NLRB 704, 707
(1986). But that case makes my point because there the union
informed employees that they had to pay dues in order to work
at the employer; no such assertion was made at the Union here.
In sum, I find the Union’s description did not sufficiently link
continued dues payment with the application of a union-
security provision.
The General Counsel argues that the Union’s flyer breached
its duty of fair representation even if it did not directly link
continued dues payment with enforcement of a union-security
provision. But I know of no case where the duty of fair repre-
sentation has been extended to monitor the propaganda pub-
lished by a union in the midst of difficult collective bargaining
with an employer and a decertification effort by certain unit
employees. Rather, I assume that under California Saw &
Knife Works, 320 NLRB 224 (1995), enfd. 133 F.3d 1012 (7th
Cir. 1988), cert. denied sub nom. Strang v. NLRB, 525 U.S. 813
(1998), and its progeny the Union has satisfied its obligation to
explain to the Hospital’s unit employees their rights regarding
membership and their rights and obligations under a union-
security clause.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The complaint is dismissed.

4 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.