AT&T Midwest and The Ohio Bell Telephone

National Labor Relations Board - Administrative Judge Opinions

Jan 9, 2009

08-CB-010487 (N.L.R.B. Jan. 9, 2009)

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Cleveland, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
COMMUNICATIONS WORKERS OF AMERICA
AND COMMUNICATIONS WORKERS OF AMERICA,
LOCAL 4309 (AT&T TELEHOLDINGS, INC., D/B/A
AT&T MIDWEST AND THE OHIO BELL TELEPHONE
COMPANY-Employer)
And CASE NO. 8-CB-10487
SANDA ILIAS, An Individual
Susan Fernandez, Esq.,
Of Cleveland, Ohio
For the General Counsel
John C. Scully, Esq.,
Of Springfield, Virginia
For the Charging Party
Theodore E. Meckler, Esq.,
Of Cleveland, Ohio
For the Union
DECISION
Statement of the Case
WALLACE H. NATIONS, Administrative Law Judge. This case was tried in Cleveland,
Ohio, on October 27, 2008. The charge in this proceeding was filed by the Charging Party,
Sanda Ilias on January 17, 2006 and an amended charge was filed by her on January 30, 2006.
An Amended Complaint and Notice of Hearing was issued by the Regional Director for Region
Eight on August 21, 2008. The Complaint alleges that Communications Workers of America and
Communications Workers of America, Local 4309 (hereinafter Respondent, CWA, or Local
4309) engaged in conduct in violation of Section 8(b)(1)(A) of the National Labor Relations Act
(hereinafter the Act). The Complaint alleges certain jurisdiction allegations which Respondents
admit in their Answer. The Complaint also alleges that AT&T Teleholdings, Inc. d/b/a AT&T
Midwest, a Delaware Corporation and the Ohio Bell Telephone Co., an Ohio corporation, are
employers engaged in commerce, meet the jurisdictional requirements of the Act and are
employers within the meaning of Section 2(2), (6) and (7) of the Act.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the Respondent and General Counsel, I make the following
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Findings of Fact
I. Jurisdiction
AT&T Teleholdings, Inc. d/b/a AT&T Midwest, a Delaware Corporation, and The Ohio
Bell Telephone Co., an Ohio corporation, herein referred to as the Employer, with an office and
place of business in Cleveland, Ohio, has been engaged in providing communication services.
The Union has admitted the jurisdictional allegations of the Complaint and I find that the
Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act and that the Respondents are labor organizations within the meaning of Section 2(5)
of the Act.
II. Alleged Unfair Labor Practices
A. The Complaint Allegations
1. At all material times since about 1940, by virtue of Section 9(a) of the Act, the
Respondents have been the exclusive collective bargaining representative of the
employees in the Unit referred to in Appendix B of the April 4, 2004 through April 4,
2009 collective bargaining agreement.
2. At all material times, the Respondents have maintained and enforced the collective
bargaining agreement referred to above covering the Unit and containing the
following conditions of employment, herein called the Union Security Provision:
“Each employee, who is a member of the Union or who is obligated to tender to
the Union amounts equal to periodic dues on the effective date of this Agreement, or who later
becomes a member of the Union and all persons becoming employees on or after the effective
date of this Agreement, shall, as a condition of employment pay or tender to the Union amounts
equal to the periodic dues applicable to members, for the period from such effective date or, in
the case of persons becoming employees after the effective date of this Agreement, on or after
the thirtieth (30th) day of employment, whichever of these dates is later, until the termination of
this Agreement. For the purpose of this Article, ‘employee’ shall mean any member of the
bargaining unit.”
3. Respondent CWA Local 4309 expends the monies collected pursuant to the Union-
Security Provision on activities germane to collective bargaining, contract
administration and grievance adjustment, herein called the representational
activities, and on activities not germane to collective bargaining, contract
administration and grievance adjustment.
4. On about September 30, 2004, the Charging Party, who is covered by the Union-
Security Provision, resigned from membership in Respondent CWA Local 4309 and
objected to paying dues for non-representational expenditures.
5. Since at least July 17, 2005, and continuing thereafter, the Respondents have
maintained and enforce a rule that is published annually in the March/April edition of
Respondent CWA’s publication CWA News. The rule requires non-member
bargaining unit employees, including the Charging Party, to annually, during the
month of May, renew their objection to paying for non-representational expenditures
during the month of May.
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6. The Charging Party did not renew her objection referred to in paragraph 4 above in
May 2005 for the 2005-2006 fiscal year or at anytime after her original resignation
referred to in paragraph 4.
7. By the conduct described above in paragraph 5, Respondents have been restraining
and coercing employees in the exercise of rights guaranteed in Section 7 of the Act
in violation of Section 8(b)(1)(A) of the Act.
8. At all material times, Helen Gibson, Administrator, Office of Special Programs, and
Brenda Mallory, President, Respondent CWA Local 4309, have been agents of
Respondent CWA Local 4309 within the meaning of Section 2(13) of the Act.
B. The Parties’ Stipulations
At the hearing, the parties entered into the following stipulations:
1. This stipulation (paragraph no. 1) is being entered simply to provide background
information for the hearing in this case: Charging Party, Sanda Ilias (Ilias) filed a
previous unfair labor practice charge against Respondent CWA (CWA) and CWA
Local 4309 (Local 4309) on December 13, 2004, which charge was assigned Case
No. 8-CB-10252. Thereafter, the charge was amended on January 18, 2005 and
February 8, 2005. Among other allegations, Ilias alleged that after she resigned from
membership and objected to paying full dues on or about September 30, 2004, the
Respondents continued to charge her full dues and did not provide her with the
information that is owed a Beck objector, including a breakdown of representational
and non-representational expenditures.1
2. This stipulation (paragraph no. 2) is being entered simply to provide background
information for the hearing in this case: On July 27, 2005 Frederick J. Calatrello,
Regional Director, Region 8, approved the terms of a bilateral informal settlement
agreement in Case No. 8-CB-10252. Respondents fully complied with the terms of
the settlement agreement. In doing so they provided Ilias with post-objection
information including a breakdown of representational and non-representational
expenditures and a check in the amount $136.85, reimbursing Ilias for non-
representational expenditures for the 2004-2005 fiscal objector year.
3. CWA’s objector year begins on July 1 and ends on June 30 of the following year.
4. CWA is primarily responsible for formulating and administering Respondents’ Beck
policy and practices. These policies and practices apply to all bargaining unit
members represented by Local 4309 as well as all other CWA Locals.
5. For all the years relevant to this proceeding, CWA annually publishes a notice
describing its Beck policy in the March/April edition of CWA News, a newsletter that
is routinely sent to bargaining unit employees nationwide. The notice of its Beck
policy, as published in the CWA News, has remained unchanged since at least 2004,
when the charge was filed in Case No. 8-CB-10252.

1 When used in this decision, “Beck” refers to the case of Communications Workers of
America (CWA) v. Beck, 487 U.S. 735 (1988).
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6. CWA provides Beck objectors with an advance reduction, reimbursing the objector
for non-representational expenditures during the objector year in which the objection
is made.
7. Brenda Mallory (Mallory) held the position of President of Local 4309 from at least as
early as December 1, 2002 to December 1, 2005. Pam Wynn (Wynn) is currently the
Local President and has held that position since December 1, 2005. When they held
(or in Wynn’s case continues to hold) the office of President, both Mallory and Wynn
were agents of Local 4309 within the meaning of Section 2(13) of the National Labor
Relations Act (the Act).
C. The Relevant Facts
Helen Gibson is the CWA’s Administrator of Office of Special Programs. She has worked
for the CWA since 1981. In her position, one of her responsibilities is overseeing the
administration of the CWA’s internal procedures for Beck objectors or agency fee payers. Her
position was created in 1988 in response to the Beck case. She testified that bargaining unit
members who want to retain their status as Beck objectors must make annual written requests
to renew their objector status. The CWA represents about 400,000 employees in the private
sector. Of these employees approximately 1500 are Beck objectors. Local 4309 represents
about 700 employees at the AT&T facilities involved in this case.
Gibson testified that the Union publishes a pamphlet entitled “Your rights with respect to
union representation, union security agreements and agency fee objections.” She said this
pamphlet is mailed to new employees and to members who have resigned and have become
agency fee payers. In addition, the Union publishes this information annually in the March/April
edition of the CWA News which is mailed to all members, including agency fee payers and Beck
objectors. With respect to this case, the Union’s policy with regard to the annual renewal of
objections is as follows:
“Objections for the period of July through June must be sent during May. In addition,
agency fee payers who are new to the bargaining unit may object within 30 days of receiving
this notice, and employees who resign union membership may object within 30 days of
becoming an agency fee payer. Employees filing late objections for either of these two reasons
should so indicate in their letter of objection. New bargaining unit members are to receive this
notice prior to any demand being made upon them for the payment of agency fees. If, however,
for any reason a new unit member begins paying agency fees prior to the receipt of this notice,
he or she may object retroactively to the commencement of such payments and for the duration
of the current annual objection period.
The letter of objection should include name, address, Social Security number, CWA
Local number, and employer. Objections must be sent to the Agency Fee Administrator, CWA
(address and phone number omitted).”
Gibson testified that an agency fee payer is defined as a person who works under a
union security agreement who chooses not to be a union member and thus must pay an agency
fee equal to membership dues as a condition of employment. Of the Union’s 400,000 private
sector represented employees, about 13,000 are agency fee payers and of that category, about
1500 to 2000 are Beck objectors. Only the Beck objectors have the non-representational portion
of their fee in lieu of dues refunded to them. And, only Beck objectors have to renew their
status annually.
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As the above policy states, other than new employees, the Beck objectors must file their
objections annually in May for the upcoming June through July twelve month period. The Union
accepts and acts on renewals filed in April, those filed in May or postmarked with a May date,
and those filed with a June 1 date. Otherwise, it appears that an employee who is already an
objector and fails to file renewed objections in that window of opportunity will lose that status for
a year and have to wait until the following May to reinstate their status as an objector.
There was some testimony about procedures followed by the Union once it receives a
timely notice of objection. If an objection is timely, the Union verifies the person’s status as an
employee and if so, determines the annual difference between the representational portion of
the agency fee and the non-representational portion and refunds the latter portion for an entire
year in a single check paid in advance. The method of calculation of this amount is also
supplied to the objector and there are avenues of appeal if the objector disagrees with the
method.
Gibson testified that the CWA receives about 1800 to 2000 objector letters annually, the
vast majority of which are received in the May filing window. The Union, by a clerical employee,
reads them to verify that the person sending the letter desires to be an objector, looking for
words like “object,” “objector,” “pay reduced dues,” or “don’t want to pay for politics.” She
testified that those are key words that almost all such letters contain. If those words are not
present, she reads the letters carefully to try to interpret the intent of the writer. She testified that
she always tries to err on the side of the letter being one of objection.
As a reason for imposing the annual objection renewal, Gibson said that if the reader of
an objection letter had to try to determine if the writer were seeking to be an objector continuing
from year to year without an annual renewal request, the reviewer of the letter would have to be
one with a higher level of judgment than the clerk or clerks who currently read the letters. She
testified that reading the letters to make the determination would take more time. Gibson was
not aware as of the date of hearing what percentage of the 1800 to 2000 objections letters
received annually are renewed objections or new objections.
Another reason given by Gibson for the CWA continuing its practice of requiring annual
objector renewal is her belief that the practice has been found lawful in certain Federal Appeals
Court cases, a matter discussed at a later point in this decision.
A further reason given by Gibson is that the Union gets employee mailing addresses
from employers via the computer. Sometimes the addresses are incorrect. She testified that the
Union gets up to date information about members’ addresses when they write to the Union.
When the Union finds a conflict in the address given by the employer for a Beck objector and an
address given by the objector, it uses the one given by the individual. She testified that part of
the reason for requiring annual renewal is to keep the Union’s address list for the objectors up to
date. There was no showing that members write the Union annually giving them an updated
address, yet there is no requirement to rejoin the Union on an annual basis nor is there a
requirement that they update their mailing addresses with the Union on an annual basis. The
same is true for agency fee payers who have not filed a Beck objector request. This group does
not have to renew their status annually and has little contact with the Union as they are not
allowed to attend meetings or vote. Gibson then testified that such information is necessary as
they are required to notify the objectors of their right to object. She also testified that new
employees are mailed a pamphlet detailing those rights and they are published in the CWA
News annually. That publication is supposedly sent to all employees in the bargaining unit,
members and objectors alike.
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A further reason she gave for having the annual renewal requirement is that statistics
about objection renewals are sent to the applicable locals to identify pockets of dissent among
the represented workers so that issue might be addressed.
The only annual reminder to objectors that they must renew their objections in May of
each year is the notice in the March/April edition of the CWA News. No individual reminders are
mailed to the existing objectors.
The CWA represents employees in bargaining units that come under the jurisdiction of
the Railway Labor Act. For workers in these bargaining units, if one objects and intends the
objection to be ongoing, the Union “flags” that objector’s file and that objector is not obligated to
renew the objection annually. The CWA is following this procedure until a law suit concerning
the renewal requirement is finally decided under the Railway Labor Act.
Charging Party Sanda Ilias is employed by AT&T in its facility in Cleveland, Ohio. She
began working for AT&T’s predecessor Ameritech in 1997. In about 2000 or 2001, Ameritech
was acquired by SBC which also later acquired AT&T and changed its name from SBC to AT&T
in about 2005. In September 2002, Ilias left her employment with SBC and was rehired by SBC
after approximately one year, in August 2003. Her employment since that date has been
continuous. Her position there is a full time customer service representative. She takes
customer calls, takes payments, and corrects any problems a customer might have with the
employer.
When she came back to work in 2003, she was a member of the Union. By letter dated
September 30, 2004, she resigned her membership and gave notice of her intent to become a
Beck objector. She testified that from the internet she learned of the National Right to Work
Legal Defense Foundation, called them, and learned of her Beck rights. Following this call, she
sent in her letter of resignation. Though Counsel for the Union questioned her knowledge about
certain legal cases cited in the letter, it makes no difference with regard to the issue in this case.
Without knowing for certain, I assume that the letter she wrote was a form letter supplied by the
Foundation.
Her dues payments are deducted every two weeks from her paycheck. She is currently
paying $30.17 to the Union twice monthly. Ilias testified that she had only received two or three
editions of the CWA News and that was in 2004. According to Ilias, she did not read the editions
she did receive because she viewed it as junk mail and did not have the time to read it. GC
exhibit 3 is a CWA Notice Regarding Union Security Agreements and Agency Fee Objections.
This publication spells out the CWA’s policies regarding Beck objections and includes the
requirement that these objectors renew their objection in writing each May for the next year. Ilias
testified that she had not seen this notice either in the CWA News or posted on an employee
bulletin board at her place of employment.
As of the time Ilias resigned her Union membership in 2004, she was unaware of the
CWA’s requirement that she had to renew her objection in writing in May of each succeeding
year to continue to be considered a Beck objector. When she was a member of the Union, she
did not have to renew her membership annually.
As noted in the stipulations above, Ilias received a check as a result of charges she
brought against the Union in an earlier case. She also received another check from the Union in
the amount of $159.34 dated April 5, 2006. Ilias testified that she assumed the check was sent
because she was an objector. Ilias was on maternity leave from her job from about October
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2005 until about January or February 2006. She paid union dues or an agency fee during that
timeframe. She has not received a check from the Union since the one she received in April
2006. She did not remember sending in a request to renew her status after her original letter of
resignation in 2004. Her affidavit to the Board indicates at the time she gave it, she was certain
that she had not sent another letter. On cross examination, she testified at some point that she
might have sent a renewal letter in January 2006, which caused the April check to be issued by
the Union. Helen Gibson testified that the check was sent in response to an objection letter Ilias
sent dated January 11, 2006. I cannot be sure that this letter was actually sent by Ilias or
received by Respondent as that letter was not produced in evidence. The filing of the charge in
this case may have been the triggering event that caused the check to be issued. The letter
accompanying the check spells out the Union’s policy of requiring written renewal request for
objectors to be sent each May for the upcoming year. For Ilias not to have been aware of the
policy following this letter can only mean that she did not read it. Additionally her amended
charge filed with the Board in this case on January 30, 2006 references the Unions’ renewal
requirement.
Ilias testified that she objected to having to renew her objector status annually. She
testified that it was inconvenient for her, citing time constraints caused by having two children
and some personal financial problems including the loss of her house.
D. Conclusions
1. Respondents’ Section 10(b) defense
Respondents allege that the Charging Party was aware of the rule requiring annual
renewal of Beck objections more than six months prior to the filing of the charge that began this
litigation. It relies on proof of that in certain attachments of factual material attached to their
brief. General Counsel has filed a Motion to Strike, dated December 12, 2008, asking me to
strike those attachments and all factual assertions and legal arguments based on them as they
were not placed in evidence at the hearing. For the reasons set forth in the Motion, I hereby
grant the motion.2 Without this alleged evidence, there is no clear proof when the Charging
Party gained knowledge of the rule at issue and thus, Respondents’ Section 10(b) argument
fails.
Moreover, in the UAW (Colt Manufacturing) case, the union advanced a Section 10(b)
argument which the Administrative Law Judge rejected. While Respondent CWA in the present
case argues unsuccessfully that Ilias was aware of the annual renewal requirement outside of
the 10(b) period in this case, General Counsel asserts that Section 10(b) does not preclude a
finding that the annual renewal requirement violates the Act. The Board has found that the
continued maintenance of a rule is unlawful even though the rule was enacted outside the 10(b)
period if the rule is found to be unlawful on its face or is presumptively unlawful. This type of
reasoning has been applied to solicitation policies. In Control Services, Inc., 305 NLRB 435
(1991), the Board adopted the ALJ’s decision that the union’s no solicitation policy was unlawful
and that Section 10(b) did not bar a finding of violations. The violation in the instant case, the
unlawful maintenance of this renewal rule, is not based on events that occurred outside of the
10(b) period, but rather the fact that the rule itself is unlawful. For this additional reason, I find

2 I hereby strike Appendices A, B and C of Respondent’s Brief and those portions of the
Brief that rely on and refer to these Appendices, specifically: Page 2, lines 16-22; Page 3, lines
1-22; Page 4, lines 1-10, 16-21; Page 5, lines 1-3; Page 11, fn. 1; Page 28, fn. 21; Page 32,
lines 17-23; and Page 33, lines 1-14.
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that Respondents’ Section 10(b) defense fails.
2. Legal Analysis
A proviso to Section 8(a)(3) of the National Labor Relations Act allows employers and
unions to enter into union security agreements requiring all employees in a particular bargaining
unit to become members on or after the 30th day following hire. The Supreme Court has held
that the term “member” requires only the payment of periodic dues and fees as opposed to full
membership. NLRB v. General Motors Corp., 373 U.S. 734 (1963). Since the Court noted that
the membership has been “whittled down to its financial core”, bargaining unit members who
resign from membership are often referred to as financial core members. In the instant case,
Respondent CWA refers to individuals who chose to be non-members as “agency fee payers”.
Agency fee payers are those bargaining unit employees who work under an union security
clause and must pay a fee equal to membership dues as a condition of employment.
The Supreme Court has also held that employees who are required to pay union dues
and fees pursuant to a union security clause may only be charged for representational activities;
that is, costs related to collective bargaining, contract administration and grievance adjustment.
Communications Workers of America (CWA) v. Beck, 487 U.S. 735 (1988). These employees
cannot be obligated to pay for non-representational expenditures after they have resigned from
membership and objected to paying full dues. California Saw & Knife Works, 320 NLRB 224
(1995). When a bargaining unit member resigns his or her membership and objects to paying
full dues, a union is required to take the following action: immediately reduce the non-member’s
dues and fees so they are charged only for representational activities; provide the objector
information regarding the percentage of the reduction of dues and fees and the basis for
calculating the reduction; and inform the objector of the right to challenge the Union’s
calculations and provide a procedure for challenging those calculations. In California Saw &
Knife Works, the Board examined the public sector and Railway Labor Act cases and concluded
that a union’s Beck obligation under the National Labor Relations Act is governed by the duty of
fair representation standard. In determining if a union has violated the Act with respect to its
Beck obligations, the question to consider is whether the union’s actions were arbitrary,
discriminatory or in bad faith in discharging its obligations. To date, there are no Board
decisions that directly address the issue presented in this case.
It is General Counsel’s position that Respondent CWA’s requirement that an employee
annually renew his/her Beck objection is arbitrary because, more likely than not, the value
judgment leading the employee to object will not change. The Respondent’s proffered
justifications serve no valid purpose other than to burden an objector’s right to maintain their
status as a Beck objector.
Two recent Administrative Law Judges’ (ALJ) decisions have examined unions’ proffered
business justifications for requiring Beck objectors to annually renew their objections.
International Association of Machinists and Aerospace Workers, AFL-CIO and International of
Machinists and Aerospace Workers, AFL-CIO, Local Lodge 2777, (L-3 Communications Vertex
Aerospace LLC), 15-CB-5169, J.D. (ATL) – 02-08, January 9, 2008; International Union, United
Automobile, Aerospace & Agricultural Implement Workers of America, Local Union 376 (Colt’s
Manufacturing Company, Inc., 34-CB-2631, JD (NY)-06-08, March 3, 2008. I find these cases
helpful in deciding the instant case as they deal with the same issue in slightly different factual
situations. The relevant analysis is to consider the relative burden and impact the annual
renewal requirement places on objectors compared to Respondent’s purported justification for
maintaining this rule.
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Much like Ilias, the objector in the International Association of Machinist (IAM) case
testified that one objection should be sufficient. The objector in that case did not read the
union’s publication and thus received no notice of his obligation to renew his objection every
year within a specified time period. The risk objectors bear is that they may forget to renew their
objection or renew it at an incorrect time (outside the window period) and thus lose their right to
object for that year. Similar to Respondent CWA, the IAM union official testified that one reason
for requiring objectors to renew on an annual basis was to keep accurate track of their
addresses so they would know where to send the annual audit showing how the reduction in
fees was calculated for the coming year. The IAM also maintained bargaining unit employees’
addresses through a database based upon information provided by the local lodges. In the
instant case, Respondent maintains updated information based upon information provided by
employers.
Also of significance in the IAM case is the fact that, like the CWA, some IAM bargaining
unit employees were covered under contracts pursuant to the Railway Labor Act and as such
the union had in place a system for accepting continuing objections. In an attempt to justify the
renewal requirement for public sector employees, the IAM pointed to the burden it would have to
shoulder if it had to determine from each objector’s letter whether that individual was objecting
just for the year or on a continuing basis. Despite this asserted justification, the ALJ determined
that the annual renewal requirement was arbitrary and thus violated Section 8(b)(1)(A) of the
Act.
In the UAW/Colt’s Manufacturing case, the ALJ, on remand, noted that the Board’s order
presented him with a very narrow issue, i.e., whether the respondent could establish valid
business justification for its requirement that objectors renew their objections on an annual basis
and to what extent that requirement places a burden on the objector. In the UAW case, the ALJ
referred to a May 30, 2006 ALJ decision in General Truck Drivers, Local 952 (Albertson’s)-
JD(SF)-30-60. The ALJ in the Truck Drivers Local 952 case concluded that the annual renewal
requirement created an additional effort to maintain objector status and that the union was
unable to provide a sound reason to justify that encumbrance. He reasoned that if employees
had an unencumbered right to resign from membership, they should also have an
unencumbered right to file Beck objections.
Unlike the Respondent CWA, the UAW in Colt’s Manufacturing operated a system that
kept objectors well informed of the expiration date of their objections. The union in that case
notified objectors 15 days prior to the expiration date of their objection and if they forgot to
renew their objection, the union sent them a copy of the letter sent to the employer asking the
employer to charge the objector the full amount of dues. While the ALJ in Colt’s Manufacturing
found that this reminder system lessened the burden on objectors, he found that the union failed
to establish a valid business purpose to justify the annual renewal requirement. The ALJ noted
that the union’s rationale for the rule appeared to be principally related to recordkeeping. The
union’s specific justifications in that case were much like Respondent CWA’s in the current
case. Also similar to the present case, the ALJ noted that yearly renewals were only required of
Beck objectors. They UAW did not require yearly renewals of union membership cards, dues
check off authorization or notice of resignation. The union in that case did not satisfactorily
explain the inconsistency. The ALJ found that the union’s renewal requirement violated the Act.
Looking at the business justifications given by Respondent CWA for its renewal
requirement, I am not convinced that they out weigh the burden and possible penalty the rule
imposes on objectors.
The first reason given by Gibson in support of the rule is that it is lawful. That is not at all
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clear. ALJ Joel Biblowitz addressed a similar defense in the Colt’s Manufacturing case. There
he stated:
“Although the Board has not yet ruled upon the legality of yearly renewal requirements of
Beck objections, [FN 4] there are a number of court decisions that go both ways, and there is, at
least, one decision from an administrative law judge on the subject. In Tierney v. City of Toledo,
824 F2d 1497, 1506 (6th Cir. 1987), the Court found this requirement ‘not . . . unreasonable’ and
lawful. Similarly, Abrams v. Communications Workers of America, 59 F3. 1373, 1381-1382
(D.C. Cir. 1995), citing Tierney and International Association of Machinists v. Street, 367 U.S.
740, 774 (1961), stated: ‘The annual renewal requirement is permissible in light of the Supreme
Court’s instruction that ‘dissent is not to be presumed – It must affirmatively be made known to
the union by the dissenting employee.” On the other hand, three courts have found the annual
renewal requirement to be unlawful. In Shea v. International Association of Machinists, 154 F.3.
508, 515 (5th Cir. 1998), involving the Railway Labor Act, the Court stated: ‘The current
procedure is cumbersome to both the union and the objecting employees because it requires
annual computer entries. If the IAM recognized continuing objections made expressly and in
writing, the employee would notify the union only once and neither the union nor the individual
would be bothered with annual database entries. The IAM has not proffered any legitimate
reason why an annual written objection requirement is necessary when the employee has
previously furnished (and not withdrawn) a continuing written objection. It seems to us that the
unduly cumbersome annual requirement is designed to prevent employees from exercising their
constitutionally-based right of objection, and serves only to further the illegitimate interest of the
IAM in collecting full dues from nonmembers who would not willingly pay more than the portion
allocable to activities germane to collective bargaining. Certainly the procedure that least
interferes with an employee’s exercise of his First Amendment rights is the procedure by which
an employee can object in writing on a continuing basis . . . If the IAM could bring forth a
legitimate reason why written objections must be annually renewed and cannot be continuing,
then perhaps we would have to evaluate whether the infringement is reasonably necessary. But
in the absence of such a reason, we hold that the annual written objection procedure is an
unnecessary and arbitrary interference with the employees’ exercise of their First Amendment
rights.
In Lutz v. International Association of Machinists, 121 F. Supp.2d 498, 506 (U.S. District
Court, E.D. Virginia 2000), the Court stated:
… the annual objection requirement imposes a burden on the First Amendment rights of
nonmembers, and yet, the IAM has not offered any legitimate reason for such a requirement . .
.As the union conceded at oral argument, what is really at stake here is whether the union can
collect more money as a benefit of the decision maker’s inertia. In other words, it is the IAM’s
hope that objecting nonmembers will either forget or overlook the annual objection requirement,
or will reconsider their objection on the merits, thereby enabling the IAM to collect greater funds
from nonmembers.
In sum, the annual objection requirement fails First Amendment scrutiny because the
requirement is without a valid justification and imposes an undue burden that creates a risk that
funds ‘will be used to finance ideological activities unrelated to collective bargaining.’ [citing
Chicago Teachers Union v. Hudson, 475 U.S. 292, 305 (1986)]
In Seidemann v. Bowen, 499 F.3 119, 125 (2d Cir. 2007), after discussing Abrams,
Tierney and Shea, the Court stated:
We are persuaded by the Fifth Circuit’s analysis in Shea, which is more in line with the
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Circuit’s jurisprudence regarding agency fee procedures and our reading of Supreme Court
precedent. Although the Supreme Court in Street, supra, placed the burden of making an initial
objection on the employee, nothing in Street or the subsequent decisions of the Supreme Court
suggest that merely because an employee must initially make his objection known, a union may
thereafter refuse to accept a dissenter’s notice that his objection is continuing . . . The fact that
employees have the responsibility of making an initial objection does not absolve unions of their
obligation to ensure that objectors’ First Amendment rights are not burdened.
Here, PSC’s annual objection requirement burdens employees exercising their
constitutionally protected right to object, and the union has proffered no legitimate need for
disallowing continuing objections . . . We hold the annual objection requirement imposed by
PSC in this case is an unnecessary burden on employees’ exercise of First Amendment rights.
Finally, on May 30, 2006, Administrative Law Judge William Kokol issued a Decision in
General Truck Drivers, Local No. 952 (Albertson’s)-JD(SF)-30-60, [FN5] wherein he found the
annual renewal requirement unlawful, stating:
The General Counsel and the three Charging Parties argue that such a requirement
[annual renewal of Beck objections] is unlawful because it burdens the rights of employees who
wish to continue to paying full membership dues. To be sure, the requirement creates an
additional effort to maintain objector status. Moreover, the Union is unable to provide a sound
reason justifying this encumbrance. In the absence of such an explanation, it appears that this
restriction is arbitrary and designed only to discourage the exercise of a right protected by the
Act. Moreover, it seems that if employees have an unencumbered right to resign from
membership, so too should they have an unencumbered right to file Beck objections. “
Colt’s Manufacturing, supra, at pages 6-7.
Moreover, in the IAM case, the Board’s remand makes it clear that it seeks an answer to
the question of whether the respondent could establish valid business justification for its
requirement that objectors renew their objections on an annual basis and to what extent that
requirement places a burden on the objector. With the foregoing in mind, I will look at the
business justifications asserted by Respondent and the burdens its requirement places on
objectors.
The first business reason advanced by Gibson for imposing the annual objection
renewal was that if the reader of the objection request had to try to determine if the writer were
seeking to be an objector continuing from year to year rather than just for one year, the reviewer
of the letter would have to be one with a higher level of judgment than the clerk or clerks who
currently read the letters. She testified that reading the letters to make the determination would
take more time. I find it curious that it would take more time to determine if a person who writes
seeking objector status means for it to continue or just be a temporary thing. I believe an
ordinary person who seeks such status would obviously intend it to be continuing until they
themselves determine they no longer want that status and so inform the Union. Moreover,
requiring such requests to be filed annually means that the Union must parse some 1800 to
2000 letters a year instead of just reading the few that would come in from new employees
desiring objector status. Gibson was not aware as of the date of hearing what percentage of the
1800 to 2000 objections letters received annually are renewed objections or new objections.
The Respondent has a procedure for continuing objections from year to year for certain of its
bargain unit employees who are under the jurisdiction of the Railway Labor Act. There was no
good reason advanced to show why employees under the jurisdiction of the National Labor
Relations Act could not be afforded the same treatment. There was no showing how this
procedure under the Railway Labor Act unduly burdened the Union.
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Moreover, if the Respondent in its notice to employees about their rights under Beck
noted that employees requesting this status make it clear whether they want only a one year
objection or want an objection that continued from year to year, making a determination as to
the objector’s intent should be simple. Or even simpler would just be to treat all requests for
objector status as continuing. That would then allow the clerk or clerks who currently make the
decision of whether a request is or is not for objector status continue to perform this task and
would significantly reduce the number of requests they must read from year to year.
A further reason given by Gibson for the renewal requirement is that the Union can use
the requirement to help insure that its addresses for employees are correct. The Union currently
gets employee mailing addresses from employers electronically via computer. She testified that
sometimes the addresses are incorrect. She testified that the Union gets up to date information
about members’ addresses when they write to the Union. When the Union finds a conflict in the
address given by the employer for a Beck objector and an address given by the objector, it uses
the one given by the individual. She testified that part of the reason for requiring annual renewal
is to keep the Union’s address list for the objectors up to date. There was no showing that
members write the Union annually giving them an updated address, yet there is no requirement
to rejoin the Union on an annual basis nor is there a requirement that they update their mailing
addresses with the Union on an annual basis. The same is true for agency fee payers who have
not filed a Beck objector request. This group does not have to renew their status annually and
has little contact with the Union as they are not allowed to attend meetings or vote. There was
likewise no showing as to how many incorrect addresses are found by requiring the Beck
objectors to renew their objections annually.
Gibson then testified that such information is necessary as they are required to notify the
objectors of their right to object. This seems a little contrived as a person filing an objection
obviously knows of their right already. Additionally, she also testified that new employees are
mailed a pamphlet detailing those rights and they are published in the CWA News annually.
That publication is supposedly sent to all employees in the bargaining unit, members and
objectors alike.
A further reason she gave for having the annual renewal requirement is that statistics
about objection renewals are sent to the applicable locals to identify pockets of dissent among
the represented workers so that that issue might be addressed. I really do not buy into this
reason. A better barometer of dissent and dissatisfaction within a local union would be better
determined by the number of new objections received each year. The fact that some people
continue to object does not indicate that something is currently wrong in a local. The number of
objectors in the CWA compared with the number of non objecting members, if indeed it is a
barometer of dissatisfaction, would indicate to me that there is extremely little dissatisfaction.
Moreover, the objection is not necessarily to Union representation but is more likely an objection
to dues being used for political and other non-representational purposes.
As noted earlier, the only annual reminder to objectors that they must renew their
objections in May of each year is the notice in the March/April edition of the CWA News. No
individual reminders are mailed to the existing objectors. From the testimony of Ilias, it is clear
that she does not read this publication. Though it is clear that she has known of the requirement
for some time, she clearly has forgotten to renew her request. The consequences of her failure
to renew are huge compared with the benefits accruing to the Union as outlined by Gibson. If
Ilias or another objector fails to timely submit the annual request, they must pay full fees for the
following year. I find that the reasons for the rule advanced by Respondent pale with the burden
placed on objectors, and that such reasons are not a legitimate business justification for the
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rule. I thus find that Respondent’s renewal requirement is arbitrary, unlawful and in violation of
Section 8(b)(1)(A) of the Act.
Conclusions of Law
1. AT&T Teleholdings, Inc. d/b/a AT&T Midwest and the Ohio Bell Telephone
Company is an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
2. Communications Workers of America and Communications Workers of
America, Local 4309 are labor organizations within the meaning of Section
2(5) of the Act.
3. By requiring their Beck objectors to renew their objections yearly, the
Respondents violated Section 8(b)(1)(A) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. I shall order that the Respondents rescind their requirement
that Beck objectors renew their objection yearly. I shall also order Respondent to notify its
existing Beck objectors, in writing, that they are not required to renew their objection yearly, and
to notify its members of the change in the next edition of CWA News that is mailed to its
members. I will further order that Respondents make the Charging Party whole, including
interest, for any fees she paid to Respondents for non-representational expenses since she first
filed her Beck objections in September 2004 that have not already been refunded to her.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended3
ORDER
The Respondents, Communications Workers of America and Communications Workers
of America, Local 4309, its officers, agents, and representatives, shall
1. Cease and desist from:
a. Requiring employees of covered employers to file annual objections to paying
full membership dues.
b. In any like or related manner, restraining or coercing employees in the
exercise of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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a. Within 30 days of the date of this decision, rescind their rule that all Beck
objectors must renew their objections in writing on an annual basis in order to
maintain their status as Beck objectors.
b. Within 30 days of the date of this decision, notify all present Beck objectors,
in writing, that Respondents will no longer require annual renewals of Beck
objections.
c. In the next issue of CWA News, state that Respondents will no longer require
the annual renewal of Beck objections.
d. Within 14 days after service by the Region, post at its union offices in
Cleveland, Ohio, copies of the attached notice marked “Appendix.”4 Copies of
the notice, on forms provided by the Regional Director for Region Eight, after
being signed by the Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive days in conspicuous
places including all places where notices to members and employees are
customarily posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the
Employer has gone out of business or closed the facility or facilities involved
in these proceedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current covered members and
employees.
e. Refund to the Charging Party, Sanda Ilias, that portion of the fees, with
interest, she has paid since September 2004 that represent the non-
representational fees that Ilias would not have been obligated to pay had she
been considered a continuing Beck objector, notwithstanding Respondents’
unlawful rule requiring annual renewal of Beck objections. Any fees refunded
to the Charging Party are to be deducted from the amount owed.
Dated, Washington, D.C. January 9, 2009
____________________
Wallace H. Nations
Administrative Law Judge

4 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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APPENDIX
NOTICE TO 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 violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT require the bargaining unit employees whom we represent to file annual
objections to paying full membership dues.
WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the
exercise of their Section 7 rights.
WE WILL rescind our rule that requires all Beck objectors to renew their objections annually to
retain their status as Beck objectors.
WE WILL notify all present Beck objectors, in writing that we no longer require the annual
renewal of Beck objections.
WE WILL publish in our next issue of CWA News the fact that we no longer require the annual
renewal of Beck objections.
WE WILL make whole Sanda Ilias for any fees for non-representational expenses she has been
forced to pay, with interest, since September 2004.
COMMUNICATIONS WORKERS OF AMERICA
AND COMMUNICATIONS WORKERS OF
AMERICA, LOCAL 4309
(Labor Organization)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
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1240 East 9th Street, Federal Building, Room 1695
Cleveland, Ohio 44199-2086
Hours: 8:15 a.m. to 4:45 p.m.
216-522-3716.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 216-522-3723.