NLRB sides with union in dues-revocation case

By Michael P. Tremoglie | Jul 16, 2012


WASHINGTON (Legal Newsline) - The National Labor Relations Board has affirmed the reversal by an administrative law judge of an NLRB regional director in a dues revocation case.

Officials of the United Food and Commercial Workers Union were allegedly not permitting employees to resign from the union during a contract hiatus.

Three employees of Fry's, a retail food company in Arizona (a right-to-work state), wanted to resign from the UFCW. When the union kept deducting dues even after they resigned during a pause in the collective bargaining agreement that was in effect by its terms from Oct. 26, 2003, to Oct. 25, 2008, they filed a complaint with the NLRB regional office claiming the union violated the National Labor Relations Act. The NLRB Regional Director concurred.

The union appealed to an NLRB Administrative Judge who reversed the Regional Director. The employees appealed to the NLRB which affirmed the judge.

The NLRB said, "Employees voluntarily signed checkoff authorizations that were clearly not linked to union membership. The complaint alleges, and the facts show, that thereafter some employee resigned from membership in the Union. The complaint alleges that by failing to treat the membership resignation as a checkoff revocation, the Union violated the Act. This argument is untenable... Second, the complaint alleges, and the facts show that some employees attempted to revoke their checkoff authorizations during a hiatus between collective-bargaining agreements and during times that were allowed under the terms of the checkoff authorization. That argument too is untenable."

The NLRB said that since the revocations occurred during the hiatus period before a new contract was reached, the union and Fry's refused to honor the revocations of the checkoff authorizations. Fry's continued the employees' wage deductions and sent the money to the union. The union sent letters to the employees explaining why the revocations were not being honored and told them the next time they would revoke the checkoff authorization.

The case cited by the NLRB to justify its actions was Frito Lay, 243 NLRB 137, 144 (1979). The NLRB, in this case, rejected the concept of employees being able to revoke their authorizations during a contract. "Here, like in Frito Lay, employees were not entitled to withdraw at will during the hiatus period between the contracts," the three-member NLRB panel wrote in its opinion.

"The administrative judge dismissed the Fry's employee's complaint and the ruling of the National Labor Relations Board Regional Director complaint. The NLRB affirmed. The next step is an appeal to a U.S. Court of Appeals, which is likely," said Glenn Taubman, staff attorney with the National Right to Work Legal Defense Foundation, which provided free legal representation to the employees.

But some are doubtful an appeal will result in a reversal. John Raudabaugh is a former member of the NLRB. Currently, he is a labor law professor at Ave Maria School of Law in Florida.

"The core issue is reversing Frito Lay, the 1979 decision preventing employees from revoking checkoff authorizations during a hiatus between contracts. Without a dissenting opinion on this decision, it is unlikely a reviewing court will overturn," he said.

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