Automotive & Allied Industries Local 618 (Sears, Roebuck & Co.)

National Labor Relations Board - Board Decisions

Oct 29, 1997

324 N.L.R.B. 865 (N.L.R.B. 1997)

865
324 NLRB No. 147
AUTOMOTIVE & ALLIED INDUSTRIES LOCAL 618 (SEARS, ROEBUCK & CO.)
1 On March 30, 1993, Administrative Law Judge Irwin H. Socoloff
issued the attached decision. The Respondent filed exceptions and a
supporting brief. The General Counsel filed cross-exceptions and a
brief in support.
2 The relevant portions of Sec. 8(b)(1)(A) and Sec. 7 are:
Sec. 8(b). It shall be and unfair labor practice for a labor orga-
nization or its agents (1) to restrain or coerce (A) employees in
the exercise of the rights guaranteed in section 7: Provided, That
this paragraph shall not impair the right of a labor organization
to prescribe its own rules with respect to the acquisition or re-
tention of membership therein . . . .
Continued
Automotive, Petroleum and Allied Industries Em-
ployees Union, Local 618 (Sears, Roebuck and
Company) and Eric W. Becker. Case 14–CB–
7803
October 29, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX
AND HIGGINS
The central question in this case is whether the Re-
spondent violated Section 8(b)(1)(A) by soliciting,
maintaining, and enforcing contracts with individual
employees under which the employees agree to pay
‘‘financial-core’’ fees to the Union for the duration of
the Union’s representation of the employees, or for the
duration of their employment, whichever is shorter.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions only to the extent con-
sistent with this Decision and Order.
The Employer and the Union have been parties to
successive collective-bargaining agreements. The
agreement in place at the time of the events at issue
here was effective from August 1, 1988, through July
31, 1991. This agreement did not contain any union-
security provision. Thus, no employee was required, as
a condition of employment, to provide financial sup-
port to the Union.
Prior to the expiration of the 1988–1991 agreement,
the union steward informed unit employees at the
Chesterfield facility that unless a sufficient number of
employees paid dues to the Union, the Union could not
afford to continue to represent the employees. Employ-
ees were told that they did not have to join the Union,
but those who did wish to join would have to sign a
‘‘financial-core’’ agreement. This document states in
pertinent part:
For and in consideration of the Agreement of
Teamsters Local Union No. 618 to continue to act
and serve as my collective bargaining representa-
tive as a Sears employee in an appropriate collec-
tive bargaining unit, I agree to become a finan-
cial-core member of the Union and pay the fees
uniformly charged to financial-core members dur-
ing the term of my employment by Sears. I under-
stand that the fees which financial-core members
are required to pay to the Union at the present
time is $— per month; but I am aware that those
fees may change from time to time, and I will
agree to pay any adjusted amounts upon notifica-
tion from the Union.
I understand that nothing contained in this
Agreement requires me to become or remain a
member of the Union, or restricts my right to join
or resign from the Union as I see fit; and the
amounts I have agreed to pay to the Union as a
financial-core member have no connection with
union membership in any way whatsoever.
. . . .
This agreement shall terminate on the termi-
nation of my employment by Sears or at such
time as the Union is no longer my collective bar-
gaining representative, whichever is earlier.
Some of the employees at the Chesterfield facility
chose not to join the Union. All of the employees who
chose to join the Union, or who were already union
members and chose to remain members, signed finan-
cial-core agreements.
On October 16, 1991, Charging Party Eric Becker
signed a financial-core agreement after first attempting
to sign only a membership application. In February
1992, Becker called the Union and spoke with clerical
employee Kim Miller. He told her that he had not been
advised of the amount he was to pay in monthly dues
or how he was to pay off the initiation fee. Miller told
Becker he owed $50 as an initiation fee and 5 months
of back dues at $16 dollars per month.
Becker said he would pay the initiation fee, but that
it was not fair to charge him for the back dues because
he had not received the information as to the amount
due. Miller insisted that Becker pay the back dues, and
Becker responded that, if that was the case, he wanted
to resign from the Union. Miller then told him he
could not resign from the Union, and that the only way
to resign was to go into a management position or quit
Sears.
The judge found, and we agree, that Miller, as the
daughter of the Union’s chief executive officer, and as
a clerical employee who routinely answers employees’
questions about dues, had at least apparent authority to
speak for the Union regarding dues, fees, membership,
and resignation. Thus, in those respects, she acted as
an agent of the Union. Accordingly, we adopt his find-
ing that the Union violated Section 8(b)(1)(A) by Mil-
ler’s statements to Becker regarding resignation.2
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866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sec. 7. Employees shall have the right to . . . engage in . . .
concerted activities . . . and shall also have the right to refrain
from any or all such activities.
3 Chairman Gould notes that in that decision, the Court character-
ized the Act as a bulwark against discrimination in seniority, wages,
and other conditions of employment.
4 347 U.S. at 40 (footnote omitted).
5 347 U. S. at 42.
6 388 U.S. at 195.
7 Id.
8 391 U.S. at 424.
9 Id. at 427.
10 394 U.S. at 428
11 Id. at 430.
12 The General Counsel argued that the financial-core agreement
was signed under duress because the Union informed employees that
unless more of them became members of the Union, the Union
would not be able to represent them any longer. The General Coun-
sel also objected to the fact that the Union required that each em-
ployee who wished to join the Union sign the financial-core agree-
ment.
We note that it is not unlawful for a union to tell employees that
unless a sufficient number of employees sign such agreements, the
union could not afford to continue representing the employees. Such
a statement by a union simply conveys an economic reality to the
employees. For this reason, we agree with the judge that the finan-
cial-core agreements were not coercively obtained.
The judge further found that by soliciting, maintain-
ing, and enforcing the financial-core agreements, the
Union also violated Section 8(b)(1)(A). In so finding,
the judge rejected the General Counsel’s contention
that the agreements were not voluntarily obtained. He
concluded, nevertheless, that the agreements were un-
lawful because they were not revocable by the employ-
ees after ‘‘a reasonable period of time.’’ We disagree.
Generally, the internal affairs of a union do not
come within the purview of the Act. In fact, only in
two respects can the internal affairs of a union impli-
cate the statute. The first is that employment status of
an employee is affected. This is the teaching of Radio
Officers Union v. NLRB, 347 U.S. 17 (1954).3 In that
decision, the Court held that ‘‘[t]he policy of the Act
is to insulate employees’ jobs from their organizational
rights. Thus, Section 8(a)(3) and Section 8(b)(2) were
designed to allow employees to freely exercise their
right to join unions, be good, bad or indifferent mem-
bers, or abstain from joining any union without imper-
iling their livelihood.’’4 Since employment status is not
involved in the instant case, the Charging Party was
not deprived ‘‘of the right guaranteed by the Act to
join in or abstain from union activities without thereby
affecting his job.’’5
The second way in which the Act can be implicated
is through a showing that a union’s actions are con-
trary to an overriding policy contained in national
labor law. Thus, although the Court in NLRB v. Allis-
Chalmers, 388 U.S. 175 (1967), stated that ‘‘Congress
did not propose any limitations with respect to the in-
ternal affairs of unions, aside from barring enforcement
of a union’s internal regulation to affect a member’s
employment status,’’6 it noted that certain issues, such
as ‘‘whether 8(b)(1)(A) proscribes arbitrary imposition
of fines, or punishment for disobedience of a fiat of a
union leader’’ were not presented in that case.7 The
reasoning of Allis-Chalmers and its progeny rests on
the theory that the right to refrain from union activity
under Section 7 may be unlawfully affected by certain
union actions. Thus, notwithstanding the fact that the
issue of employment status is not present as in Radio
Officers, the statute still may be violated by certain in-
ternal union actions.
In subsequent cases, the Court developed its stand-
ard for determining whether fines or other union dis-
cipline violated Section 8(b)(1)(A) of the Act. Thus, in
NLRB v. Marine & Shipbuilding Workers, 391 U.S.
418 (1968), the Court reiterated that the proviso to
Section 8(b)(1)(A) ‘‘assures a union freedom of self-
regulation where its legitimate internal affairs are con-
cerned,’’8 but held that a union acted unlawfully when
it expelled a member for failing to exhaust internal
union remedies before filing charges with the Board,
since, in the Court’s view, access to remedies under
the Act was beyond the internal affairs of the union.9
Subsequently, in Scofield v. NLRB, 394 U.S. 423
(1969), the Court summarized its holdings in this area
by stating that although it is not the function of the
Board to judge ‘‘the fairness or wisdom of particular
union rules, it has become clear that if the rule invades
or frustrates an overriding policy of the labor laws, the
rule may not be enforced, even by fine or expulsion,
without violating Section 8(b)(1).’’10 Thus, the Court
continued, ‘‘Section 8(b)(1) leaves a union free to en-
force a properly adopted rule which reflects a legiti-
mate union interest, impairs no policy Congress has
imbedded in the labor laws, and is reasonably enforced
against union members who are free to leave the union
and escape the rule.’’11 Under that test, the Court con-
cluded that a union acted lawfully in fining employee-
members for violating a union rule prohibiting em-
ployee-members from exceeding a piece-work ceiling
and accepting pay for it on a schedule other than that
approved by the union.
Although the Supreme Court was addressing an in-
ternal union rule in Scofield, this framework is equally
applicable to the situation in this case, involving the fi-
nancial-core agreement individually entered into by the
Charging Party and the Union. Under this framework,
we find no violation here.
The circumstances here involve an internal union
matter; a contract between the Charging Party and his
union, individually and voluntarily entered into.12 The
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867AUTOMOTIVE & ALLIED INDUSTRIES LOCAL 618 (SEARS, ROEBUCK & CO.)
core agreement does not require that an employee abide by the
Union’s bylaws or constitution, or prohibit an employee from engag-
ing in or refraining from any activity in support of or in protest
against the Union. In essence, what the Charging Party has done is
to sign a contract which provides that he pay an amount of money
equal to that paid by financial-core members, in exchange for the
Union continuing to serve as the collective-bargaining representative
for employees in the unit. Such an agreement reflects a legitimate
union interest in gaining financial support from the unit employees
it represents and impairs no policy imbedded in the national labor
laws.13
13 Our dissenting colleague asserts that, absent a union-security
agreement, a union cannot charge employees for representational
services it is already legally obligated to provide. The union here is
not ‘‘charging’’ any employee for services: it is asking employees
to voluntarily agree to pay for such services. Moreover, as the union
made clear at the time it solicited employees to sign the agreements,
without a commitment of financial support from a sufficient number
of employees, it would not be able to afford to continue to represent
the unit. Thus, the services that employees obtained by signing the
agreement were services that the union might well not have other-
wise provided.
14 Steelworkers Local 4671 (National Oil Well), 302 NLRB 367,
368 (1991) (the explicit language in the dues-checkoff authorization
clearly authorized dues deduction even in the absence of union
membership); Electrical Workers IBEW Local 2088 (Lockheed Space
Operations), 302 NLRB 322, 328 (1991). Chairman Gould agrees
that the principle of clear and explicit waiver of a statutory right is
applicable here, but finds it unnecessary to rely on Lockheed, and
expresses no view as to the viability of Lockheed’s holding.
15 Sec. 302(c)(4) involves dues-checkoff authorization agreements,
which are limited to a 1-year period of irrevocability.
16 Chairman Gould is of the view that the statute as written does
not provide for a ‘‘fundamental right to be free to resign from union
membership.’’ It is true that the Supreme Court in Pattern Makers
stated that ‘‘union restrictions on the right to resign [are] inconsist-
ent with the policy of voluntary unionism implicit in Section
8(a)(3).’’ 473 U.S. at 104. But the deciding vote cast in that 5–4
decision was predicated on deference to the Board’s exercise of its
expertise. Id. at 116–117. Indeed a substantial part of Justice Pow-
ell’s majority opinion in Pattern Makers is similarly rooted in this
policy. Id. at 114–115. As Chairman Gould more fully set forth in
California Saw & Knife Works, 320 NLRB 224, 236 fn. 64 (1995),
he does not believe that the National Labor Relations Act provides
for a ‘‘fundamental right to be free to resign from union member-
ship.’’ Rather, his view is that the statute provides for a policy of
carefully taking into account the competing rights to engage in con-
certed activity and to refrain from so engaging. Accordingly, he be-
lieves that the Act permits reasonable restrictions to be placed on an
employee’s right to resign. What is paramount in determining the
lawfulness of such a restriction is the employee’s ability to make an
informed decision prior to the time that resignation is restricted, and
whether an employee’s right to resign has been properly balanced
against the union’s legitimate concerns. See William B. Gould, Soli-
darity Forever—or Hardly Ever: Union Discipline, Taft-Hartley, and
the Right of Union Members to Resign, 66 Cornell L. Rev. 74
(1980).
17 302 NLRB at 328.
only arguable infringement on the Charging Party’s
Section 7 rights by the individual contract in this case
involves the Charging Party’s agreement to pay fees to
the Union as long as he remains in the unit and the
Union continues to represent the unit. The financial-
We emphasize that the collective-bargaining agree-
ment here does not contain a union-security clause,
which would affect the employment relationship be-
tween employees and employers, and could potentially
implicate the Act. In addition, we note that the finan-
cial-core agreement states that there is no requirement
that an employee become a member of the Union and
that there are no restrictions on resignation from union
membership. Employees were required to sign the
agreement if, and only if, they chose to become or re-
main union members. Thus, employees were free to
join or not join the Union, and if an employee did
choose to join, he or she was free to resign at any
time.
The judge found a violation based on the fact that
financial-core agreement here is ‘‘limitless as to time,’’
and that it was contrary to the statutory scheme to per-
mit a union to so burden an employee’s right to refrain
from assisting a union. Although the judge acknowl-
edged that the Board has recognized that an employee
may, by a clear and explicit waiver, waive the Section
7 right to refrain from financially supporting a union,14
the judge reasoned that any such waiver must be read
in light of the policy considerations underlying Section
302(c)(4) of the Act15 as well as other portions of the
statute. In so doing, the judge concluded that it was
unlawful for the Union to seek such a waiver because
of the duration of the agreement.
Here, the Charging Party clearly and unmistakably
agreed to pay the required dues pursuant to the terms
of the agreement without regard to his union member-
ship for the duration of his tenure with the employer
or until the Union ceased to represent him, whichever
occurred first. Thus, though the financial-core agree-
ment is not limited in time, it is limited in amount and
does not in any other way restrict the employee in the
exercise of his or her Section 7 rights. Accordingly,
even if a right protected by the Act was implicated by
this agreement, the Charging Party clearly and un-
equivocally waived his right to refrain from supporting
the Union, and no violation occurred because there is
nothing in the national labor policy against such an
agreement.
Our dissenting colleague, citing Lockheed, attempts
to equate the Section 7 right to resign upheld in Pat-
tern Makers, 473 U.S. 95 (1985),16 with the right to
refrain from paying dues. The Board in Lockheed,
however, specifically recognized that remaining a
member and paying dues are two distinct actions and
that an employee can voluntarily agree to pay dues
even when he or she is no longer a member of the
Union.17 The Board stated that
Our review of statutory policies and contractual
principles persuades us that there is no reasonable
basis for precluding an employee from individ-
ually agreeing that he will pay dues to a union
whether or not he is a member of it . . . .18
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868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 In this regard our dissenting colleague takes contradictory posi-
tions. On the one hand he asserts that there can be no ‘‘fee’’ for
representation even when, as here, employees have voluntarily
agreed to make such payments. On the other hand he suggests that
he would find such agreements lawful if they are limited in time.
As discussed above, we find that both the agreement to pay dues
and the further agreement to pay the dues while represented are law-
ful under the National Labor Relations Act.
20 Member Fox finds the analogy to Sec. 302(c)(4), requiring that
employees be afforded periodic opportunities to revoke authoriza-
tions for dues checkoff, to be inapposite. As the Board recognized
in Lockheed, dues checkoff is a method by which an employee can
meet his or her dues obligations. Where an employee is otherwise
obligated—by a union-security clause or by some other agreement
entered into by the employee—to pay dues or fees to a union, the
employee’s decision not to authorize dues checkoff or to revoke a
dues-checkoff authorization previously granted does not relieve the
employee of his or her financial obligations to the union. It simply
means that the employee must make other arrangements for paying
the dues or fees owed directly to the union rather than having those
monies automatically deducted from his or her wages and forwarded
to the union by the employer. The ‘‘financial-core’’ agreement at
issue here does not provide for or authorize deductions from wages
and thus does not implicate the policies underlying Sec. 302(c)(4).
21 Our dissenting colleague asserts that a union may not ‘‘restrict
indefinitely’’ an employee’s right to refrain from paying dues and
that ‘‘it is contrary to the spirit of the statute and the general rule
of contracts to require that agreements with no period of duration
are to last forever.’’ Assuming arguendo that both propositions are
true, neither is applicable to the agreement at issue here. As to the
first, to the extent that the agreement limits a signer’s ability to
cease supporting the union, the limitation is not a union-imposed re-
striction but one which a solicited employee is free to accept or re-
ject. As to the second, under the terms of the agreement, the obliga-
tion to pay dues to the union does not ‘‘last forever’’ but continues
only as long as the signer remains a unit employee and the union
retains its status as the unit’s majority representative.
22 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.’’
Thus, the limitations that Pattern Makers imposes on
the right to resign do not apply to a voluntarily entered
into agreement to pay dues.
Our dissenting colleague acknowledges that Lock-
heed held that an employee can lawfully agree to con-
tinue paying dues to a union even after resignation
from the union. He then notes that the agreement was
part of a checkoff authorization and therefore limited
in time. He suggests that if the agreement at issue here
was similarly limited in time it may well be lawful,
but contends that its extension through the duration of
the Union’s representation of the unit employees some-
how contravenes ‘‘a policy embedded in the nation’s
labor laws.’’19 We disagree.
We see nothing warranting a finding that the statute
in any way prohibits a voluntary agreement to pay the
fees that financial-core members pay so long as the
union serves as the employees’ representative. Indeed,
under the 8(a)(3) union-security proviso, Congress al-
lows unions to negotiate and enforce union-security
clauses that are binding, at least for financial-core pur-
poses, on employees whether they consent or not. And,
assuming the employer agrees to include such clauses
in successive collective-bargaining agreements, a union
may secure financial-core support for the duration of
its representation, just as it seeks to do through these
agreements. Since union-security clauses may result in
discharge for nonpayment of dues, it is difficult to see
how the voluntary financial-core agreements at issue
here, which pose no threat to job status, can be said
to offend the policies of the Act merely because of
their duration.20
Furthermore, if the employee is dissatisfied with the
representation the employee is free to seek the support
of his or her fellow employees for a decertification
election. If the Respondent were to lose an election the
employee would be free of any obligation to pay dues
under the terms of the individual agreement to pay
dues. Of course, if the Respondent were to win the
election the Respondent would continue to represent
the employee and the employee would, as he or she
voluntarily agreed, be required to pay for that rep-
resentation.21
Accordingly, we find that because the Act is not im-
plicated under either Radio Officers or Allis-Chalmers
and its progeny, and because the Charging Party freely
and voluntarily chose to sign the financial-core agree-
ment, and the agreement clearly states on its face that
the payment of the financial-core dues were not related
to union membership and would continue for the dura-
tion of the Charging Party’s tenure at Sears or until the
Union no longer represents him, the financial-core
agreement does not violate Section 8(b)(1)(A) of the
National Labor Relations Act in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Automotive, Petroleum and Allied Indus-
tries Employees Union, Local 618, St. Louis, Missouri,
its officers, agents, and representatives, shall
1. Cease and desist from
(a) Informing employees that they cannot resign
from the Union.
(b) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed 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 St. Louis, Missouri, facility copies of the at-
tached notice marked ‘‘Appendix.’’22 Copies of the
notice, on forms provided by the Regional Director for
Region 14, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to members are customarily posted. Reasonable steps
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869AUTOMOTIVE & ALLIED INDUSTRIES LOCAL 618 (SEARS, ROEBUCK & CO.)
1 Pattern Makers v. NLRB, 473 U.S. 95 (1985).
2 Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330
(1984); Auto Workers Local 73 (McDonnell Douglas), 282 NLRB
466 (1986).
3 Electrical Workers IBEW Local 2088 (Lockheed Space Oper-
ations) 302 NLRB 322, 328 (1991).
4 473 U.S. at 113, fn. 26.
5 So long as the union remains the representative, the employee
can escape the obligation only by quitting his unit employment.
6 Lockheed, 302 NLRB at 329. Such an agreement must be clear
and unequivocal.
7 Sec. 302(c)(4) of the Act.
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(b) Furnish the Regional Director for Region 14
with signed copies of the notice for posting by Sears,
Roebuck and Company at its St. Louis, Missouri, met-
ropolitan area facilities, if willing, in places where no-
tices to employees are customarily posted.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
MEMBER HIGGINS, dissenting.
The central question in this case is whether the Re-
spondent violated Section 8(b)(1)(A) by soliciting,
maintaining, and enforcing agreements which obligate
unit employees to pay ‘‘financial-core’’ fees to the
Union for the duration of the Union’s representation of
the unit or of their employment tenure, whichever is
shorter.
My colleagues conclude that the Respondent did not
violate the Act by the afore-mentioned conduct. I agree
with the judge that the conduct was unlawful. In my
view, a provision which operates to waive, for a sub-
stantial and indefinite period, the Section 7 right to re-
frain from supporting the Union is not to be coun-
tenanced by the Act.
In Pattern Makers,1 the Supreme Court upheld the
Board’s view that a restriction on the Section 7 right
to resign, embodied in a union bylaw, was invalid.
Since the restriction was invalid, the employee resigna-
tions were effective, and the union violated Section
8(b)(1)(A) by fining the employees for postresignation
conduct. In cases before and after Pattern Makers, the
Board has held that a restriction on resignation, em-
bodied in a union constitution or bylaw, violates Sec-
tion 8(b)(1)(A) of the Act.2
Concededly, the instant case involves the right to re-
frain from paying money to a union, rather than the
right to refrain from union membership. However, both
rights are guaranteed by Section 7. As the Board clear-
ly stated in Lockheed:3
We merely hold that the policy of ‘‘voluntary un-
ionism’’ that informs the Supreme Court’s deci-
sion in Pattern Makers with regard to remaining,
or declining to remain, a union member also logi-
cally relates to other forms of union activity.
The ‘‘other form of union activity’’ involved in Lock-
heed was the right to refrain from paying dues to the
union.
Based on the above, I conclude that a restriction on
refraining from paying dues to the union impairs Sec-
tion 7 rights, just as does a restriction on resigning
from the union.
In Pattern Makers, it made no difference that the
employee voluntarily became a union member and
agreed to be bound to the union’s constitution and by-
laws. The overriding concern was that the employee be
free thereafter to exercise the Section 7 right to resign.
Similarly, it makes no difference here that the em-
ployee voluntarily becomes a member and agrees to be
bound to the promise to continue paying dues. The
overriding concern is that the employee be free there-
after to exercise the Section 7 right to refrain from
paying dues.
I recognize that the restriction in Pattern Makers
was embodied in a union constitution, while the re-
striction here is in an individual agreement between the
employee and the union. In Pattern Makers, the union
argued that the employee, in joining the union, had im-
plicitly agreed to the constitutional provision and thus
should be bound to a promise not to resign. The Court
rejected the argument. The Court said that a ‘‘prom-
ise’’ made in this manner was ‘‘unlike any other in
traditional contract law.’’4 The vice was that the prom-
ise purported to waive an important statutory right.
Similarly, the promise here, made in an individual
agreement, is unlike a traditional contractual promise.
The vice is that the promise waives an important Sec-
tion 7 right for an indefinite period.5
As noted above, the Board has previously consid-
ered individual agreements to waive Section 7 rights,
including the Section 7 right involved herein, viz, the
right to refrain from giving financial support to a
union. In Lockheed, supra, the Board held, inter alia,
that an employee could lawfully agree to continue pay-
ing dues to a union (through the checkoff mechanism)
even after resignation from the union.6 However, the
individual agreement in Lockheed was contained in the
individual’s checkoff authorization. As a matter of law,
such an agreement must be made revocable at periodic
intervals, i.e., upon the anniversary of the signing of
the checkoff or upon the expiration of the collective-
bargaining agreement, whichever occurs sooner.7 By
contrast, the agreements here are not limited to 1-year
periods or to the expiration of a contract. If the agree-
ments had been so limited in time, that may well have
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870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 My colleagues contend that the restriction at issue ‘‘is not a
union-imposed restriction but one which a solicited employee is free
to accept or reject.’’ This is true only in the sense that the employee
is free not to join the union in the first place. The problem here is
that those who do join are impermissibly restricted from later re-
fraining from paying dues, even if they resign from membership.
9 The union can charge dues for representation, through a union-
security clause. However, there is no such clause in the instant case.
10 ‘‘It is generally the rule that a contract for an indefinite period,
which by its nature is not deemed to be perpetual, may be termi-
nated at will on giving reasonable notice.’’ Corpus Juris Secundum,
Contracts Sec. 398.
My colleagues say that the agreement does not ‘‘last forever.’’ I
agree that it does not. However, the agreement is for an indefinite
period of time, and such agreements may not lawfully last forever.
They must be revocable upon reasonable notice. The instant agree-
ment is not revocable upon notice. It is thus not lawful.
been reasonable and lawful. However, as discussed
above, the time limitation is open ended. Indeed, so
long as the union is the representative, the employee
can resign only by quitting his employment. In these
circumstances, the restraint on Section 7 rights is un-
reasonable and unlawful.
My colleagues rely on the Scofield principle that a
union regulation is permissible if it meets certain cri-
teria. However, the most elemental of these criteria is
that the employee-member must be free to resign from
union membership and thereby avoid the regulation. In
the instant case, the employee can resign from mem-
bership, but he/she is still obligated to pay the dues.
Thus, at the most basic level, the Scofield criteria are
not met.8
The Union’s conduct also fails under another of the
Scofield tests. My colleagues acknowledge, as they
must, that internal union rules are unlawful if they
contravene a policy embedded in the nation’s labor
laws. As set forth above, the right to refrain from pay-
ing dues to a union is clearly embedded in Section 7.
It is subject to restraint only by a union-security clause
or by a voluntary checkoff limited in time by Section
302(c)(4). The instant case does not involve union se-
curity, and the time limitations of Section 302(c)(4) are
not present.
Member Fox rejects the analogy to checkoffs, argu-
ing that checkoff involves the deduction of dues from
wages. However, just as employees have a Section 7
right to refrain from having dues deducted from wages,
they have an even more fundamental right to refrain
from paying dues at all (in the absence of a union-se-
curity clause). Accordingly, since the former right can-
not be restricted for an indefinite period [See Sec.
302(c)(4)], a fortiori the latter right cannot be so re-
stricted.
My colleagues say that the employee’s agreement to
pay dues indefinitely is a contract. It is nothing of the
kind. The union owes all unit employees a duty of fair
representation, irrespective of whether they pay dues.
Thus, the dues are not a quid-pro-quo consideration for
the service of representation, because the service must
be provided irrespective of the dues.9 Of course, em-
ployees can voluntarily agree to pay the dues. The
issue in this case is whether that agreement can law-
fully endure for an indefinite period. I conclude that it
cannot. This conclusion is not inconsistent with my
view that such an agreement can lawfully endure for
a reasonable period.
My colleagues also assert that, without a sufficient
number of employee agreements, the Union would not
represent the employees. However, the term ‘‘suffi-
cient’’ is hopelessly imprecise, the matter was never
reduced to writing, and there is no evidence that any
employee signed the agreement to forestall Union
abandonment of the unit. Thus, this aspect of the em-
ployee agreement hardly qualifies it as a contract.
In sum, the Union has restricted indefinitely the em-
ployees’ fundamental right to refrain from paying dues.
It is contrary to the spirit of the statute and the general
rule of contracts to require that agreements with no pe-
riod of duration are to last forever.10 Rather, the proper
test is one of reasonableness, and it is unreasonable to
bind employees for their entire employment period in
the unit.
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT inform employees that they cannot re-
sign from the Union.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
AUTOMOTIVE, PETROLEUM, AND ALLIED
INDUSTRIES EMPLOYEES UNION, LOCAL
618
Kathleen Fothergill, Esq., for the General Counsel.
Clyde E. Craig, Esq., of Saint Louis, Missouri, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge. Upon a
charge filed on March 6, 1992, and an amended charge filed
on August 31, 1992, by Eric W. Becker, an individual,
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871AUTOMOTIVE & ALLIED INDUSTRIES LOCAL 618 (SEARS, ROEBUCK & CO.)
2 The factfindings contained herein are based upon a composite of
the documentary and testimonial evidence introduced at trial. Where
necessary to do so, in order to resolve significant testimonial con-
flict, credibility resolutions have been set forth, infra. In general, I
have relied, fully, on the testimony of employees Gary Hedden and
Roger Green, and former employee Eric Becker, all of whom im-
pressed me as honest and forthright witnesses. I have accorded less
weight to the testimony of the Union’s steward, Bobby Blackmon,
in view of his evasiveness as a witness and the confusing nature of
portions of his testimony. I have also viewed with suspicion the tes-
timony of the Union’s office clerical employee, Kim Miller, in light
of my impressions of her demeanor as a witness.
3 At trial, the parties stipulated that Blackmon is an agent of the
Union within the meaning of Sec. 2(13) of the Act in that he has
authority to handle and adjust contractual grievances on the Union’s
behalf, and to speak for it with respect thereto.
against Automotive, Petroleum and Allied Industries Employ-
ees Union, Local 618 (the Respondent), the General Counsel
of the National Labor Relations Board, by the Regional Di-
rector for Region 14, issued a complaint dated August 31,
1992, alleging violations by Respondent of Section
8(b)(1)(A) and Section 2(6) and (7) of the National Labor
Relations Act (the Act). Respondent, by its answer, denied
the commission of any unfair labor practices.
Pursuant to notice, trial was held before me in St. Louis,
Missouri, on October 14, 1992, at which the General Counsel
and the Respondent were represented by counsel and were
afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence. Thereafter, the
parties filed briefs which have been duly considered.
On the entire record in this case, and from my observa-
tions of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Sears, Roebuck and Company, a corporation, duly author-
ized to do business in the State of Missouri, operates retail
stores and automotive service stations throughout the St.
Louis metropolitan area, including a facility located in Ches-
terfield, Missouri. Sears is engaged in the retail sale and dis-
tribution of clothing, household goods and related products,
and the performance of automotive service work. During the
12-month period ending July 30, 1992, Sears, in the course
and conduct of its business, derived gross revenues in excess
of $500,000 from the operation of the St. Louis area facili-
ties, and purchased and received, at its Chesterfield facility,
products, goods, and materials, valued in excess of $50,000,
which were sent directly from points located outside the
State of Missouri. I find that Sears, Roebuck and Company
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent is the collective-bargaining representative of
Sears employees working at various service station facilities
in the greater St. Louis metropolitan area. Sears and the
Union have been parties to successive collective-bargaining
agreements, the most recent of which is effective for the
term August 1, 1991, to July 31, 1994. The prior agreement
was for the term August 1, 1988, to July 31, 1991, and, like
its successor, did not contain union-security provisions.
On August 16, 1991, the Board adopted, in the absence of
exceptions, the decision of Administrative Law Judge Ste-
phen J. Gross in Cases 14–CB–-6044 and 14–CB–7648–1. In
those cases, Judge Gross found that the Union, during the
term of the 1988 to 1991 agreement, and during the term of
prior agreements, violated Section 8(b)(1)(A) of the Act by
refusing to accept the membership resignations of unit em-
ployees, and by soliciting, maintaining, and enforcing indi-
vidual membership contracts restricting the right of signatory
employees to resign from membership in the Union.
In the instant case, the General Counsel contends that Re-
spondent violated Section 8(b)(1)(A) of the Act, during the
1991–1992 period, and thereafter, by informing employee
Becker that he could not resign from the Union, and by re-
quiring unit employees to execute individual contracts man-
dating payment of ‘‘financial-core’’ fees for the duration of
union representation. The General Counsel argues that, by
maintaining and enforcing such agreements, Respondent fur-
ther violated the Act. Respondent denies that it told Becker
that he could not resign from the Union, and urges that the
solicitation, maintenance, and enforcement of the individual
‘‘financial-core’’ agreements was lawful.
B. Facts2
As noted, the 1988–1991 contract expired on July 31,
1991. Prior to that date, in the spring of 1991, and until the
new contract was signed early in 1992, the Union, through
its steward, Bobby Blackmon,3 on various occasions, in-
formed unit employees at the Chesterfield facility that, unless
a sufficient number of them paid dues to the Union, it could
not afford to continue to represent the employees. Blackmon
distributed to the employees new membership applications,
as well as ‘‘financial-core’’ agreements, and advised employ-
ees that they had to sign the agreement in order to join the
Union. This document provided:
AGREEMENT
For and in consideration of the Agreement of Team-
sters Local Union No. 618 to continue to act and serve
as my collective bargaining representative as a Sears
employee in an appropriate collective bargaining unit, I
agree to become a financial-core member of the Union
and pay the fees uniformly charged to financial-core
members during the term of my employment by Sears.
I understand that the fees which financial-core members
are required to pay to the Union at the present time is
$llll per month; but I am aware that those fees
may change from time to time, and I will agree to pay
any adjusted amounts upon notification from the Union.
I understand that nothing contained in this Agree-
ment requires me to become or remain a member of the
Union, or restricts my right to join or resign from the
Union as I see fit; and the amounts I have agreed to
pay to the Union as a financial-core member have no
connection with union membership in any way whatso-
ever.
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872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Green credibly testified that, during an earlier conversation,
Blackmon had explained to him that, after signing both the member-
ship application and the agreement, an employee could resign from
full union membership, but would have to remain a ‘‘financial-
core’’ member.
5 Miller, in her testimony, denied that she told Becker that he
could not resign unless he took a management position or left his
employment. For the reasons stated at fn. 2, her denial is not cred-
ited.
6 See, e.g., Hotel & Restaurant Employees Local 50 (Dick’s Res-
taurant), 287 NLRB 1180 (1988).
7 Sheet Metal Workers Local 73 (Safe Air), 274 NLRB 374 (1985).
I agree that in the event that it is necessary for the
Union to file suit to enforce this Agreement or collect
any amounts due thereunder, I will pay all costs and
expenses in connection with such suit, including reason-
able attorney’s fees.
This Agreement shall terminate on the termination of
my employment by Sears or at such time as the Union
is no longer my collective bargaining representative,
whichever is earlier.
Signed at St. Louis Missouri on this lllll day
of lllll, 1991.
Members Signature lllllll
Members So. Sec. #llllll
STORE LOCATION lllllllllll
Accepted by Teamsters Local Union No. 618
BY lllllllllll
DATE lllllllllll
All of the unit employees at the Chesterfield facility, who
were or became members of the Union, signed ‘‘financial-
core’’ agreements. Most did so in March and April 1991,
while others did not sign agreements until September or Oc-
tober of that year. Still others signed neither membership ap-
plications, nor agreements, and did not become members of
the Union. The agreements, which were similarly distributed
at other facilities, were maintained and enforced by the
Union.
Charging Party Eric Becker credibly testified that, in Sep-
tember or October 1991, while contract negotiations were on-
going, he spoke to Blackmon about joining the Union.
Blackmon gave him a membership application and a ‘‘finan-
cial-core’’ agreement form. When Becker asked if it was true
that the Union would drop the shop absent sufficient em-
ployee participation, Blackmon stated, yes. Thereafter, Beck-
er signed the membership application, only, and sent it to the
Union’s office. He did not sign the agreement.
Some 2 weeks later, Becker and employee Roger Green
approached Blackmon.4 According to the credited testimony
of Becker and Green, Green attempted to turn in a signed
membership card, only. Blackmon told him that he had to
sign the agreement, too, in order to join the Union. When
Becker stated that he had sent to the Union a membership
card, but not an agreement, Blackmon told him that he, too,
had to sign the agreement to become a union member.
Thereafter, in early October, Green signed the agreement and
turned it in to Blackmon. On October 16, Becker signed an
agreement form and sent it to the Union.
In February 1992, Becker placed a telephone call to the
Union and spoke with clerical employee Kim Miller. He told
her that he had not been advised of the amount he was to
pay in monthly dues, or about how he was to pay off the
initiation fee. Miller told Becker that he owed to the Union
a $50 initiation fee and 5 months of back dues, at $16 per
month, for a total of $80 in back dues. Becker stated that
he would pay the initiation fee but that it was not right to
charge him for back dues as he had not received information
as to the amount due per month. Miller insisted that Becker
pay the back dues. Becker responded, stating that, if that
were the case, he would pay the amount demanded by Miller
and, then, ‘‘I want out of the Union.’’ According to Becker’s
credited testimony, Miller then told him that ‘‘you cannot re-
sign from the union . . . the only way to resign from the
union would be to go into a management position or to quit
Sears.’’5
On February 24, 1992, Becker sent a resignation letter to
the Union and enclosed a check for $130, covering the initi-
ation fee and 5 months of back dues. On March 2, he re-
ceived a letter from the Union, signed by Bob Miller, the
Union’s chief executive officer, stating that the Union ‘‘will
construe your letter of February 24, 1992, as a request to
convert to financial-core membership status,’’ by virtue of
which $14.74 per month would be due and owing. On March
9, Becker sent to the Union another letter, stating that he was
not a financial-core member and would pay no form of dues,
whatsoever. In response, the Union, on April 1, sent to Beck-
er a brief letter, along with a copy of the agreement he had
signed in October 1991.
Clerical employee Kim Miller, the daughter of Respond-
ent’s chief executive officer, as part of her duties, takes and
gives messages. She sends out computer-generated billing
statements, delinquency notices, and other letters in her name
as union representative. She has sent a letter, or letters,
signed by her, to an employee to advise him that ‘‘it is not
possible for you to resign from the Union.’’ She receives the
questions of unit employees regarding their dues, and an-
swers those questions. Steward Blackmon testified that he di-
rects employees’ questions regarding dues, resignation, and
the ‘‘financial-core’’ agreement, to her. In these cir-
cumstances, I find that Miller has, at the least, apparent au-
thority to speak for the Union regarding dues, fees, member-
ship, and resignation and is, in those regards, an agent of the
Union within the meaning of Section 2(13) of the Act.6
C. Conclusions
As shown in the statement of facts, in February 1992, Re-
spondent, by its agent, Kim Miller, informed employee Beck-
er that he could not resign from membership in the Union.
As a union lawfully may not restrict the Section 7 right of
its members to resign, Respondent-Union thereby violated
Section 8(b)(1)(A) of the Act, as alleged in the complaint.7
The Act also accords employees the right to refrain from
financially supporting a union, but that right may be waived.
Thus, even in the absence of contractual union-security pro-
visions, employees may waive the statutory right by entering
into individual agreements to pay dues or its equivalent, for
example, by executing checkoff authorizations. In the case of
checkoff, the authorizations lawfully may obligate the sig-
natories to make periodic payments to the union, by means
of payroll deduction, even in the absence of membership, and
even after resignation from membership. Under Section
302(c)(4) of the Act, employers may honor such authoriza-
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873AUTOMOTIVE & ALLIED INDUSTRIES LOCAL 618 (SEARS, ROEBUCK & CO.)
8 Electrical Workers IBEW Local 2088 (Lockheed Space Oper-
ations Co.), 302 NLRB 322 (1991).
9 Cf. Bellkey Maintenance Co., 270 NLRB 1049 (1984).
10 In Lockheed, the Board observed that Congress, in enacting Sec.
302(c)(4), sought, inter alia, to ensure that once an individual author-
ization was given, an employee was to be afforded periodic opportu-
nities to reconsider the original decision.
11 473 U.S. 95 (1985).
tions if they are voluntarily given and are irrevocable for a
limited period, only.8
In this case, the record evidence fails to support the Gen-
eral Counsel’s contention that the ‘‘financial-core’’ agree-
ments signed by many of the unit employees were not volun-
tarily obtained. The Union, apparently, made the signing of
such agreements a condition of membership which, absent
union-security requirements, it had a right to do. It told the
unit employees that, unless a sufficient number of them fi-
nancially supported the Union, it could not afford to continue
to represent them, that is, continue to act as their collective-
bargaining representative beyond the expiration of the then
current contract. This simple statement of the facts of indus-
trial life did not transform the Union’s appeal to the employ-
ees, to agree to contribute financial support to the Union,
into a coercive solicitation. I conclude that the signed agree-
ments were the product of wholly voluntary action on the
part of the employees.9
However, I further conclude that, by soliciting the signa-
tures of the unit employees on the ‘‘financial-core’’ agree-
ments, and by maintaining and enforcing those agreements,
Respondent restrained and coerced employees in the exercise
of their Section 7 rights, in violation of Section 8(b)(1)(A)
of the Act. I reach this conclusion because the ‘‘financial-
core’’ agreements, as written, do not limit the irrevocable ob-
ligations of the signatories, to make periodic payments to the
Union, to a reasonable time period. Rather, by signing the
agreements, according to their terms, employees irrevocably
waived their statutory right to refrain from financially sup-
porting the Union until they terminated their employment or
the Union ceased to act as their collective-bargaining rep-
resentative. In practical terms, the irrevocable obligation to
make payments is limitless as to time.
While, in Lockheed, supra, the Board stated that ‘‘there is
no reasonable basis for precluding an employee from individ-
ually agreeing that he will pay dues to a union, whether or
not he is a member of it. . . . Neither is there a reasonable
basis for precluding enforcement of such an agreement
. . . .’’ I think, nonetheless, that it is contrary to the statu-
tory scheme to permit a union so to burden the exercise of
a fundamental statutory right as to allow it to solicit, main-
tain, and enforce an irrevocable waiver of the right which is
not limited to a reasonable period of time. In the case of
checkoff, Section 302(c)(4) of the Act specifically limits the
irrevocable period of the authorization, under which an em-
ployer lawfully may remit dues payments, to not more than
1 year, or the termination date of the applicable collective-
bargaining agreement, whichever occurs sooner. While the
statute does not contain a provision specifically limiting the
irrevocable period of an agreement to pay dues or its equiva-
lent, by checkoff or otherwise, which may be solicited, main-
tained, and enforced without running afoul of the provisions
of Section 8(b)(1)(A) of the Act, that Section must be read
in light of the policy considerations underlying Section
302(c)(4),10 and other portions of the statute, including the
policy of voluntary unionism recognized by the Supreme
Court in Pattern Makers v. NLRB.11 In this connection, I
note that in Lockheed, the Board emphasized that the waiver,
by explicit language, of the statutory right to refrain from fi-
nancial]y supporting a union, which, generally, it coun-
tenanced there in the checkoff context, was one effective for
a limited period of time.
In light of the foregoing statutory policies and provisions,
and the guiding case law, I conclude that a union violates
Section 8(b)(1)(A) of the Act by soliciting, maintaining, and
enforcing agreements by employees to waive their statutory
right to refrain from financially supporting a union, where,
as here, such agreements are not revocable after a reasonable
period of time.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practice conduct in violation of Section 8(b)(1)(A)
of the Act, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Sears, Roebuck and Company is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Respondent, Automotive, Petroleum and Allied In-
dustries Employees Union, Local 618, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By informing an employee that he could not resign
from membership in the Union, Respondent engaged in un-
fair labor practice conduct within the meaning of Section
8(b)(1)(A) of the Act.
4. By soliciting, maintaining, and enforcing agreements
with employees under which signatory employees agree, ir-
revocably, to pay ‘‘financial-core’’ fees to the Union for a
period of unreasonable duration, Respondent has engaged in
unfair labor practice conduct within the meaning of Section
8(b)(1)(A) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
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