Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Stewart v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

March 21, 2017

Kimberly Stewart, et al., Petitioners
v.
National Labor Relations Board, Respondent United Food & Commercial Workers Local 99, Intervenor

          Argued September 7, 2016

         On Petition for Review of an Order of the National Labor Relations Board Glenn M. Taubman argued the cause and filed the briefs for petitioners.

          David Seid, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Richard F. Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Ruth E. Burdick, Supervisory Attorney.

          Kristin L. Martin argued the cause for intervenor. With her on the brief was Eric B. Myers.

          Before: Srinivasan and Wilkins, Circuit Judges, and Silberman, Senior Circuit Judge.

          OPINION

          Srinivasan, Circuit Judge

         Employees commonly pay their union dues through a mechanism known as a checkoff arrangement. In a checkoff arrangement, an employee authorizes her employer to deduct union dues from her paycheck and remit the dues directly to the union on her behalf. That arrangement affords convenience and efficiency. It enables unions to avoid collecting payments from potentially numerous individual employees, and it enables employees to avoid writing periodic dues checks to the union.

         An employee's authorization for her employer to check off union dues from her wages is not irrevocable. A federal statute, Section 302(c)(4) of the Labor Management Relations Act, specifies circumstances in which an employee must be afforded the opportunity to revoke a checkoff authorization. And collective bargaining agreements, when establishing the availability of a checkoff arrangement for paying dues, correspondingly set out how an employee can revoke an authorization.

         In this case, a group of employees, during the period between the expiration of the operative collective bargaining agreement and the commencement of a new one, resigned from their union and sought to revoke their dues-checkoff authorizations. The company, however, continued to deduct union dues from the employees' wages, and the union continued to accept the payments. The National Labor Relations Board rejected charges that the company and union had committed an unfair labor practice by continuing to check off union dues from the employees' wages.

         We vacate the Board's decision and remand the matter to the agency. The Board treated the case as a straightforward application of its precedent pertaining to the revocability of dues-checkoff arrangements. But the circumstances of this case, as it comes to us, differ in significant ways from those in the precedent on which the Board relied. On remand, if the Board were to attempt to reach the same result again, it would need to explain how the outcome could be squared with its precedent and governing law. Because the Board's decision, as it stands, lacks any such explanation, we cannot sustain it.

         I.

         A.

         Section 302(c)(4) of the Labor Management Relations Act speaks to the revocability of an employee's dues-checkoff authorization. The Act generally makes it a crime for an employer to give payments to a labor union. 29 U.S.C. § 186. Section 302(c)(4) establishes an exception to that prohibition for dues-checkoff transfers from an employer to a union on an employee's behalf. The exception states that the criminal bar on employer payments to a union is inapplicable "with respect to money deducted from the wages of employees in payment of membership dues in a labor organization." Id. § 186(c)(4).

         The exception requires, however, that an employee's checkoff authorization be revocable in enumerated circumstances. In particular, the employer must have "received from each employee, on whose account such deductions are made, a written assignment which shall not be irrevocable for a period of more than one year, or beyond the termination date of the applicable collective agreement, whichever occurs sooner." Id.

         Those criminal provisions are administered by the Attorney General, not the National Labor Relations Board. But the Board has long held that employers and unions engage in unfair labor practices under Sections 8(a)(1)-(3) and 8(b)(1)(A) of the National Labor Relations Act if they check off union dues without an employee's valid authorization. See e.g., Frito-Lay, Inc., 243 NLRB 137, 137 (1979). And in examining whether employers and unions have committed unfair labor practices in that connection, the Board has interpreted Section 302(c)(4)'s directive that an employee's checkoff authorization "shall not be irrevocable for a period of more than one year, or beyond the termination date of the applicable collective agreement, whichever occurs sooner." 29 U.S.C. § 186(c)(4).

         The Board has long understood that language to "guarantee[] an employee two distinct rights when he executes a checkoff authorization under a collective-bargaining agreement." Atlanta Printing Specialties, 215 NLRB 237, 237 (1974), enf'd, 523 F.2d 783 (5th Cir. 1975). The first right, the Board explained in Atlanta Printing, is a "chance at least once a year to revoke his authorization" on the annual anniversary of his execution of the authorization. Id. The second right is "a chance upon the termination of the collective-bargaining agreement to revoke his authorization." Id. And because the employer and union in Atlanta Printing had denied the "statutory rights" conferred by Section 302(c)(4), the Board held that they had committed an unfair labor practice. Id. at 238.

         The Board's later decision in Frito-Lay, Inc., 243 NLRB 137 (1979), elaborates on its understanding of Section 302(c)(4) in a manner of particular relevance here. The employees in Frito-Lay executed checkoff authorizations which were irrevocable except during two 10-day "escape" windows corresponding to the dual rights recognized in Atlanta Printing: the first window was an annual 10-day period commencing 20 days before the yearly anniversary of an employee's checkoff authorization, and the second window was a 10-day period commencing 20 days before the expiration of the operative bargaining agreement. The employees in question attempted to revoke their checkoff authorizations during a hiatus period between bargaining agreements-i.e., after expiration of the operative agreement. The company and union denied the revocation requests and continued deducting union dues. They reasoned that, under the terms of the checkoff authorizations, the employees had been required to revoke during the specified 10-day window preceding the initial agreement's expiration, and had no entitlement to do so after its expiration.

         The Board agreed, rejecting the General Counsel's argument that the company and union committed an unfair labor practice by continuing to check off union dues during the contract hiatus. The General Counsel, relying on Section 302(c)(4)'s guarantee of a revocation opportunity "beyond the termination date of the applicable collective agreement, " contended that the employees had a statutory entitlement to revoke their checkoff authorizations after the initial agreement's expiration. The Board was unpersuaded. It initially indicated that a violation of Section 302(c)(4) would not necessarily establish an unfair labor practice (even though it had found an unfair labor practice in Atlanta Printing based on a denial of the rights granted by that section). Id. at 138. The Board went on to hold that, insofar as Section 302(c)(4) bears on the existence of an unfair labor practice, there had been no violation of the statute. Id. at 138-39.

         The Board explained that "there is no violation of Section 302(c)(4) . . . as long as employees are accorded an opportunity to revoke their authorizations at least once a year and at the termination of any applicable collective-bargaining agreements." Id. at 138. And in the Board's view, "the limiting of the opportunity to revoke to a reasonable escape period, such as between 20 and 10 days before the expiration of either of these periods, does not require a different result." Id. Because "the employees did not revoke their authorizations during either of these escape periods, the Union and Employer were justified in considering the authorizations still valid." Id. at 139.

         Although the Board initially questioned in Frito-Lay the extent to which a violation of Section 302(c)(4) would necessarily occasion the finding of an unfair labor practice, it has since reverted to its understanding in Atlanta Printing of an association between Section 302(c)(4) and unfair labor practices relating to checkoff. See Int'l Bd. of Elec. Workers (Lockheed), 302 NLRB 322, 325 n.8 (1991); WKYC-TV, Inc., 359 NLRB 286, 289 n.13 (2012). And after Frito-Lay and Atlanta Printing, the Board understands Section 302(c)(4) to establish a statutory right to two opportunities to revoke a checkoff authorization: one tied to the annual anniversary of the authorization, and the second tied to the expiration of the operative collective bargaining agreement. With respect to each of those two opportunities, the Board concluded in Frito-Lay, the bargaining agreement can validly confine the available revocation window to a reasonable escape period preceding the anniversary and expiration dates, respectively.

         B.

         With that backdrop in mind, we turn to the dispute in this case. Fry's Food Stores is a retail grocery company with stores throughout Arizona. Arizona is a right-to-work state, meaning that employment cannot be conditioned on membership in a union or payment of union dues. But the company entered into a collective bargaining agreement with a union representing a unit of employees (United Food and Local 99, AFL-CIO) and the agreement established the availability of a checkoff arrangement for paying dues.

         The agreement set forth the terms of an employee's checkoff authorization, which was to include a specification that "[t]his Check-Off Authorization and Agreement is separate and apart from the [Union] Membership Application and is attached to the Membership Application only for convenience." Smith's Food & Drug Centers Inc., 358 NLRB 704, 706 (2012). The agreement also prescribed the language of the checkoff authorizations with regard to the periods in which an employee's authorization would be revocable. On that score, the checkoff authorizations were to state:

This authorization and assignment shall be irrevocable for a period of one (1) year from the date of execution or until the termination date of the agreement between the Employer and Local 99, whichever occurs sooner, and from year to year thereafter, unless not less than thirty (30) days and not more than forty-five (45) days prior to the end of any subsequent yearly ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.