Teamsters Local 89 (United Parcel Service)

National Labor Relations Board - Board Decisions

Jul 23, 2014

361 N.L.R.B. 45 (N.L.R.B. 2014)

TEAMSTERS LOCAL 89 (UPS) 45
International Brotherhood of Teamsters, Local Union
No. 89 (United Parcel Service, Inc.) and Darrell
R. Hall. Cases 09–CB–011985 and 09–CB–012018
July 23, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
Upon a charge filed May 14, 2008, by Darrell R. Hall,
an amended charge filed July 7, 2008, and an additional
charge filed August 5, 2008, the General Counsel of the
National Labor Relations Board issued an order consoli-
dating cases, a consolidated complaint, and a notice of
hearing on August 25, 2008, alleging that International
Brotherhood of Teamsters, Local Union No. 89 had vio-
lated Section 8(b)(1)(A) of the Act. Specifically, the
consolidated complaint alleges that the Respondent Un-
ion violated Section 8(b)(1)(A) by (1) failing to inform
Hall that he had a right to refrain from paying any union
dues, nonmember financial core fees, or reduced Beck
fees to the Union because of his recent expulsion from
the Union; (2) refusing to reimburse Hall for the reduced
Beck fees that were deducted from his pay from the time
of his expulsion in November 2007 to April 6, 2008; and
(3) threatening to sue Hall in civil court to recover the
amount of reduced Beck fees that he failed to pay subse-
quent to April 6, 2008.
On November 3, 2008, the General Counsel, the Un-
ion, and Hall filed with the Board a joint stipulation and
a joint motion to transfer this proceeding to the Board.
The parties waived a hearing before an administrative
law judge and agreed to submit the case directly to the
Board for findings of fact, conclusions of law, and a de-
cision and order, based on a record consisting of the
charges, the consolidated complaint, the answer, the stip-
ulation of facts and attached exhibits, the statement of
issues presented, and the parties’ statements of position.
On December 30, 2008, the Board approved the stipu-
lation of facts and granted the motion. Thereafter, the
General Counsel and the Union filed briefs, and the Un-
ion filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
On the entire record and briefs, the Board makes the
following
FINDINGS OF FACT
I. JURISDICTION
United Parcel Service (UPS or the Employer) is a cor-
poration with offices and places of business in various
locations, including Louisville, Kentucky. The Employ-
er is engaged in the interstate transportation of freight
and the delivery of parcels. During the calendar year
ending December 31, 2008, UPS derived revenues in
excess of $50,000 for the transportation of freight and the
delivery of parcels from the Commonwealth of Kentucky
directly to points outside the Commonwealth of Ken-
tucky. We find that UPS is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that the Respondent Union is a labor
organization within the meaning of Section 2(5) of the
Act. The Charging Party is a former member of the Un-
ion still employed by UPS, whom the Union continues to
represent as a member of the bargaining unit at a UPS
facility in Louisville, Kentucky.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Stipulated Facts
At all relevant times, the Union and the Employer
were parties to a national collective-bargaining agree-
ment negotiated by the Teamsters United Parcel Service
National Negotiating Committee, a number of Teamsters
local unions (including the Respondent Union), and the
Employer. The contract contained union-security and
checkoff provisions, whereby the Employer deducted the
monthly union dues owed by each bargaining unit mem-
ber from the member’s paycheck and forwarded the
moneys deducted to the Union. Hall was employed at
the Employer’s Louisville facility and was a member of
the Union and a shop steward until October 27, 2007,
when he was expelled for campaigning for a rival union.1
From the date of Hall’s expulsion until April 30,
2008,2 UPS made monthly deductions from his
paychecks in the amount of an objecting nonmember’s
“Beck” fee—i.e., the reduced fee paid by a represented
employee who objects to paying the full amount of a
member’s dues, pursuant to Communications Workers of
America v. Beck, 487 U.S. 735 (1988)—and forwarded
those deductions to the Union.
On April 6, Hall sent a letter to the Union demanding
that it “not charge or attempt to collect any dues or fees
from me,” and that it refund “all of the dues that have
been collected from my paychecks” since the date of his
expulsion. On May 27, the Union responded, stating that
it would “no longer bill your financial obligations to Lo-
cal 89 dues on the monthly check off forms sent to your
employer,” and enclosing a refund check to Hall in the
amount of the Beck fees that had been withheld from him
for the month of April. The Union’s letter also stated,
“We are currently considering other options because we
do not believe federal labor law requires us to tolerate
1 There is no contention that Hall’s expulsion from the Union was
unlawful.
2 All subsequent dates are in 2008.
361 NLRB No. 5

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 46
‘free riders’ who expect us to provide representation to
them without paying their share of the costs.”
On July 18, the Union sent another letter to Hall, stat-
ing that “non-members of Local 89 must still pay a ‘fi-
nancial core’ fee to the local union to cover their share of
the costs of representation.” This letter attached a copy
of the Union’s “financial core policy” and a checkoff
authorization card for financial-core fee deductions, but
also indicated that Hall could in the alternative make his
fee payments directly to the Union. The letter then stated
that if Hall refused to pay the fee, the Union would sue
for payment in court under a quantum meruit theory.
Since April 2008, however, the Union has not collected
or sought to collect any additional fees from Hall nor
paid him any additional reimbursement, pending the out-
come of this case.
B. The Parties’ Contentions
The General Counsel contends that the Union could
not lawfully require Hall to pay any union dues, non-
member financial core fees, or reduced Beck fees—that
is, any amount whatsoever—following his expulsion
from membership, because his expulsion was “for rea-
sons other than his failure to pay union dues” within the
meaning of Section 8(a)(3), Proviso B. Accordingly, the
General Counsel argues, the Union’s postexpulsion col-
lection of reduced Beck fees from Hall, its failure to re-
fund those fees, and its threat to seek payment of addi-
tional such fees in court subsequent to his objection were
unlawful. For these contentions, the General Counsel
relies solely on Transportation Workers Local 525
(Johnson Controls World Services), 326 NLRB 8 (1998)
(Johnson Controls II), vacating Transportation Workers
Local 525 (Johnson Controls World Services), 317
NLRB 402 (1995) (Johnson Controls I). The General
Counsel also asserts that the Union acted unlawfully by
failing to inform Hall that he was no longer required to
pay any union dues, nonmember financial core fees, or
reduced Beck fees because of his expulsion from mem-
bership.
The Union contends that it had the right under Beck to
collect core fees from Hall after his expulsion and that it
therefore committed no violation by collecting the fees
before his objection, retaining them afterward, and
threatening to sue in court for fees subsequently accrued
while it continued to represent Hall. The Union argues
that it was consequently under no obligation to inform
Hall that he had no monetary obligation after his expul-
sion. With respect to its statement that it would pursue
legal action, the Union also relies on Bill Johnson’s Res-
taurants v. NLRB, 461 U.S. 731 (1983), and BE & K
Construction Co. v. NLRB, 536 U.S. 516 (2002).
C. Discussion
1. Johnson Controls II
Union-security clauses in collective-bargaining agree-
ments are authorized under Section 8(a)(3), with the fol-
lowing pertinent limitation in its Proviso B:

[N]o employer shall justify any discrimination against
an employee for nonmembership in a labor organiza-
tion [pursuant to a union-security clause]. . . (B) if he
has reasonable grounds for believing that membership
was denied or terminated for reasons other than the
failure of the employee to tender the periodic dues . . .
uniformly required as a condition of . . . retaining
membership.3

In Johnson Controls II, on which the General Counsel
relies, the respondent union had lawfully expelled an
employee for signing a decertification petition, but was
found to have unlawfully threatened him with discharge
under the applicable union-security clause if he failed to
continue paying membership dues or fee equivalents
applicable to nonmembers. The Board found that “the
clear language of Section 8(a)(3) and Section 8(b)(2)”—
and specifically the terms “membership” and “reasons
other than” the failure to pay dues, as used in Proviso
B—made the union’s threat of discharge unlawful. 326
NLRB at 9. The Board noted that the expulsion of a
member for disloyalty was necessarily a termination of
membership “for reasons other than the failure of the
employee to tender periodic dues.” Id. Accordingly, in
the Board’s view, the enforcement of a union-security
clause against an expelled employee, for the purpose of
collecting membership dues or the equivalent fee paid by
nonmembers, by threatened or attempted discharge, was
barred by Proviso B. Id.4
The General Counsel, however, offers little to support
his assertion that Johnson Controls II similarly extin-
guishes the Union’s right to seek dues from Hall by
means—as here—other than threat of discharge, while
continuing to represent him. We find that the stipulated
record in this case does not establish the violations al-
leged in the complaint, on two grounds. First, the Gen-
eral Counsel has misapplied Johnson Controls II to the
3 Similarly, Sec. 8(b)(2) makes it unlawful for a union “to cause or
attempt to cause an employer to discriminate against an employee in
violation of [Sec. 8(a)(3)] or to discriminate against an employee with
respect to whom membership in such organization has been denied or
terminated on some ground other than his failure to tender the periodic
dues . . . uniformly required as a condition of acquiring or retaining
membership.”
4 No party in this case has argued that Johnson Controls II should
be overruled or modified, and we express no opinion about the correct-
ness of that decision.

47
TEAMSTERS LOCAL 89 (UPS)
facts of this case. Second, there is no statutory basis in
the Act for finding the Union’s actions unlawful.
Johnson Controls II, by its terms, goes no farther than
to bar the threatened or actual enforcement of a union-
security clause by threat of discharge. It neither holds
nor states that a union has no entitlement to fees from an
ex-member who has been lawfully expelled but contin-
ues to receive representation. Nor does Johnson Con-
trols II suggest that the union is barred from seeking on-
going payment in some form—at least in the reduced
amount of Beck fees5—from a lawfully expelled employ-
ee by lawful means other than by threatening or seeking
the employee’s discharge.
The Union in this case never threatened Hall with dis-
charge or attempted to procure his discharge for non-
payment of dues after his expulsion from membership.
Nor is there any allegation that the Union failed at any
time to comply with its duty to represent Hall fairly after
his expulsion. The Union’s threat of a collection lawsuit
against Hall did not target any of his protected activity.
Accordingly, none of the Union’s actions falls within the
prohibition imposed by Johnson Controls II, and that
case is plainly distinguishable from the instant proceed-
ing. Johnson Controls II is therefore not controlling
here.
2. Additional authority
Looking beyond Proviso B, neither Section 8(a)(3) nor
Section 8(b), by their terms or by implication, proscribes
the actions taken by the Union in this case. Section
8(a)(3) authorizes unions and employers to negotiate
union-security clauses that require membership in the
union “as a condition of employment.” Johnson Con-
trols II, the currently applicable precedent, applies that
section, its Proviso B, and Section 8(b)(2) to bar a union
and an employer from using a threat of discharge to en-
force a union-security clause against an employee ex-
pelled from membership for disloyal misconduct. How-
ever, Section 8(a)(3) does not prohibit a union from at-
tempting to collect dues or equivalent fees by any other
lawful means from such an employee or from any other
recalcitrant nonmember whom the union is required to
represent. Similarly, Section 8(b)(2) echoes Proviso B in
barring a union from causing an employer to discharge
an employee for any reason “other than his failure to
tender” dues. But as with Section 8(a)(3), neither Sec-
tion 8(b) nor any other provision in the Act bars a union
from seeking dues or core fees by other lawful means
5 The Union here never sought to collect from Hall any moneys oth-
er than the reduced core fees provided for objectors in Beck.
from an employee who remains in the represented bar-
gaining unit.6
The Act’s consistent exceptions for “failure to tender
dues” express its policy favoring the sharing among all
represented employees of the cost of representation pur-
suant to a lawful union-security provision. The Supreme
Court expressly acknowledged this policy in Beck, reaf-
firming that unions need not tolerate free riders and that
“Congress [in the Taft-Hartley Act] recognized that in
the absence of a union-security provision ‘many employ-
ees sharing the benefits of what unions are able to ac-
complish by collective bargaining will refuse to pay their
share of the cost.’” 487 U.S. at 748–749 (quoting NLRB
v. General Motors Corp., 373 U.S. 734, 740–741
(1963)).7 Neither Beck nor its predecessors distinguished
employees who had been lawfully expelled from their
union from other employees who continue to receive
representation by the union.
The legislative history of the Taft-Hartley Act, refer-
enced in Beck, further supports this reading of the statute.
The section of the Senate Labor Committee report ac-
companying Section 8(a)(3) characterized the statutory
text authorizing union-security clauses and their en-
forcement as follows:

[T]hese amendments remedy the most serious abuses
of compulsory union membership and yet give em-
ployers and unions who feel that such agreements pro-
moted stability by eliminating “free riders” the right to
continue such arrangements.
6 Although we have found in some other cases that a union’s at-
tempt to pursue dues from nonmembers in court was unlawful, the
union’s claim in those cases was not based, as here, on a valid union-
security clause. For example, in Quebecor Printing Hazelton, 330
NLRB 32, 34–35 (1999), enfd. 245 F.3d 231 (3d Cir. 2001), the collec-
tive-bargaining agreement had a clause which merely required employ-
ees to “apply” for membership as a condition of employment. The
Third Circuit agreed with the Board that the union’s collection action
was unlawful for the sole reason that the clause did not require employ-
ees to maintain their membership as a condition of employment. 245
F.3d at 244–245. In Professional Assn. of Golf Officials, 317 NLRB
774 (1995), where the contract had a checkoff provision but not a un-
ion-security clause, the Board found that the union “had no right to
commence a legal action designed to force [the employee], in the ab-
sence of a union security provision or any effort . . . by him to become
a union member, to provide such support.” Id. at 777. And in Service
Employees Local 121RN (Pomona Valley Hospital Medical Center),
355 NLRB 234, 235 (2010), enfd. 440 Fed.Appx. 524 (9th Cir. 2011),
the contract containing the union-security clause had expired and the
Board simply reaffirmed that such a clause did not survive contract
expiration and therefore could not be enforced postexpiration. By
contrast with each of these cases, the Union here was acting under a
valid union-security clause that was currently in force.
7 Quoting S. Rep. No.105, 80th Cong, 1st Sess., at 6, 1 Leg. Hist.
412 LMRA. (1947). “As far as the federal law [by the enactment of
Proviso B] was concerned, all employees could be required to pay their
way.” General Motors, supra, 373 U.S. at 741 (emphasis added).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 48

S. Rep. No.105, 80th Cong., 1st Sess., at 7, 1 Leg. Hist. 413
LMRA (1947) (emphasis added). The reference to “abuses”
indicates that the amendments were not intended to penalize
a union for taking a nonabusive action—e.g., the lawful
expulsion of a member for assisting a rival union. Moreo-
ver, the union objective of “eliminating free riders” was
viewed as legitimate.
In like manner, Senator Taft, the chief sponsor of the
Taft-Hartley Act, characterized the effect of Proviso B as
follows: “[W]hat we do, in effect, is to say that no one
can get a free ride in such a [union] shop.” Leg. Hist. at
1010 (emphasis added). Senator Taft went on to explain
the meaning of the proviso by citing an incident in the
Labor Committee’s record in which a union member had
witnessed a shop steward hit a foreman and testified in
court to what he had seen. The member was subsequent-
ly expelled from the union in reprisal, and “under the
union agreement the employer would have to fire him.
Under this bill the employer would not have to fire that
man unless he did not pay his union dues.” Id. (Empha-
sis added.) At a later point, Senator Taft was even more
explicit:

So, if a union fires a man for some reason other than
nonpayment of dues: If the employee is willing to pay
his dues . . . then the union cannot compel his employer
to fire him because he is no longer a member of the un-
ion. . . .

Id. at 1096 (emphasis added). The clear implication again is
that an employee expelled from the union remains under a
dues obligation.
In short, all of the judicial and legislative authority cit-
ed above counsels that we should interpret Proviso B
narrowly with respect to restricting the collection of dues
from employees who have been expelled for lawful rea-
sons unrelated to nonpayment. This authority militates
against finding that the Union in this case acted unlaw-
fully by threatening Hall with a lawsuit aimed solely at
dues collection.8
The Court of Appeals for the District of Columbia Cir-
cuit has noted, pursuant to Beck, that to hold disciplined
members immune from any fee obligation would not
only permit occasional free riders but would actively
encourage them. In Gilbert v. NLRB, 56 F.3d 1438 (D.C.
Cir. 1995), cert. denied 516 U.S. 1171 (1996), enfg.
Boilermakers (Kaiser Cement Corp.), 312 NLRB 218
(1993), the court cautioned that the result of such a hold-
ing would be that an employee “would be free to avoid
his or her financial obligation to a union merely by flout-
8 In finding the Union’s threat lawful, we express no view on the
merits of the Union’s theory of liability in quantum meruit.
ing the union’s rules, submitting to discipline . . . and
then refusing to pay any membership dues. . . .” 56 F.3d
at 1445. As the court recognized, such a scenario “flies
in the face” of the Court’s holding in Beck “that unions
need not tolerate free riders.” Id. This reasoning applies
with equal force to Hall, the lawfully expelled employee
in this case, as to the disciplined member in Gilbert.
There is no question that an employee who has been
lawfully expelled or disciplined by a union can—like a
Beck objector who voluntarily resigns from or refuses to
join the union—reduce his or her monetary obligation to
the amount chargeable for representational expenses.9
However, the Act does not bar a union from seeking
payment of core fees from such an employee, as the Un-
ion did here by threat of a collection lawsuit. We do not
perceive any compelling policy reason for reading Provi-
so B in the expansive manner urged by the General
Counsel; rather, we share the contrary policy concerns
expressed by the D.C. Circuit in Gilbert.
We therefore conclude that the Union did not violate
the Act by threatening to sue Hall for unpaid dues.10 It
follows that the Union also had no obligation to inform
Hall, as alleged by the General Counsel, of his right to
“refrain” from paying any dues or equivalent fees
charged to nonmembers at the time of his expulsion.11
Although we have found that unions’ duty of fair repre-
sentation imposes certain notice obligations to mem-
bers,12 such obligations have never included notice of a
9 There is no issue of failure by the Union to respect Hall’s Beck
rights in this case, since from the date of his expulsion the Union treat-
ed Hall as a Beck objector and sought to collect only the amount he
would owe if he had filed a Beck objection.
10 We accordingly find it unnecessary to address the Union’s invo-
cation of the Supreme Court’s decisions in Bill Johnson’s Restaurants
v. NLRB and BE & K Construction Co. v. NLRB, supra.
11 Member Miscimarra agrees that the Union’s actions in this case
were not unlawful as alleged in the complaint. In his view, however, a
union should be required to provide employees with notice of their fee
options (nonmember financial core fee or reduced Beck fee) when they
are expelled, even if the union previously provided the notice required
under California Saw & Knife Works, 320 NLRB 224 (1995), enfd. 133
F.3d 1012 (7th Cir. 1998), cert. denied 525 U.S. 813 (1998), at the time
it initially sought to impose the union-security obligation. Member
Miscimarra would apply this requirement prospectively. Employees in
Hall’s position would have no reason to know that a notice to potential
Beck objectors pertained to them. The Beck notice, furnished to em-
ployees eligible for union membership, does not inform employees
expelled from membership that their financial obligations as expelled
former members are identical to those of employees who resign from or
refuse to join the union on their own initiative. Indeed, in this case,
neither Hall nor the General Counsel believed that Hall’s obligations
were the same as those of Beck objectors. The Board has “consistently
required unions to provide accurate information to bargaining unit
employees regarding the extent of their financial obligations to the
union.” California Saw, 320 NLRB at 233.
12 For example, a union must notify members of their Beck rights; it
must also notify them of their dues arrears prior to seeking discharge

49
TEAMSTERS LOCAL 89 (UPS)
right of an expelled member to refrain from paying any
dues.13
We similarly reject the General Counsel’s allegation
that the Union was required to disgorge the fees it re-
ceived from deductions in Hall’s pay before he issued his
demand that the Union cease collecting dues from him.
There is no basis for finding that the Union came under
for nonpayment. See California Saw & Knife Works, supra; August
Busch & Co., 203 NLRB 1041 (1973), enfd. 502 F.2d 1160 (1st Cir.
1974).
13 Machinists District Lodge 94 (McDonnell Douglas), 283 NLRB
881 (1987), cited by the General Counsel in support of his failure-to-
give-notice allegation, is clearly distinguishable. In McDonnell Doug-
las, the Board adopted, without discussion, the judge’s finding that the
union was required to provide notice to disciplined former members
that the dues obligation would not be enforced against them through a
threat of discharge pursuant to a union-security clause. 283 NLRB at
893. Here, however, there was no threat or attempt to procure Hall’s
discharge pursuant to a union-security clause; in fact, the Union made
no reference to Hall’s employment status at all. In addition, the Gen-
eral Counsel’s allegation is not that the Union unlawfully failed to
inform Hall that the union-security clause would not be enforced by
discharge, but that the Union failed to inform Hall that he had the right
to refrain from paying any dues or fees whatsoever. McDonnell Doug-
las does not support such an allegation.
any obligation to disgorge fees it had collected from Hall
under a valid union-security clause before it even re-
ceived his objection.14
In sum, we conclude that the Union did not violate the
Act by threatening to sue Hall for the fees he accrued
while the Union continued to represent him after his ex-
pulsion; by not giving him notice that he had no further
obligation to pay dues; or by refusing to disgorge the fees
it collected from Hall after his expulsion but before he
registered an objection. We therefore dismiss the com-
plaint.
ORDER
The complaint is dismissed.
14 See Auto Workers Local 95, 337 NLRB 237, 240–241 (2001)
(employee was not entitled to Beck-related backpay from dues collected
before he communicated a Beck objection to the union), citing Railway
Clerks v. Allen, 373 U.S. 113, 117–119 (1963), and Machinists v.
Street, 367 U.S. 740, 774 (1961) (“[D]issent is not to be presumedit
must affirmatively be made known to the union by the dissenting em-
ployee.”) See also Chicago Teachers Local 1 v. Hudson, 475 U.S. 292,
306 fn. 16 (1986) (same).