Los Angeles Times

National Labor Relations Board - Board Decisions

Aug 25, 2011

357 N.L.R.B. 645 (N.L.R.B. 2011)

LOS ANGELES TIMES COMMUNICATIONS, LLC
357 NLRB No. 66
645
Los Angeles Times Communications, LLC and Lee
Carey, Petitioner and Graphic Communications
Conference, International Brotherhood of
Teamsters, Local 140N. Case 21–UD–000415
August 25, 2011
DECISION ON REVIEW AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER,
PEARCE, AND HAYES
On May 26, 2009, the Regional Director for Region 21
administratively dismissed the Petitioner’s deauthori-
zation petition filed pursuant to Section 9(e)(1) of the
Act. On August 14, 2009, the Board granted review.1
The Petitioner and the Union filed briefs on review.2 We
find that the deauthorization petition must be processed,
in light of the clear statutory language set forth in Section
8(a)(3) of the Act, which is expressly referenced in the
deauthorization election provision set forth in Section
9(e)(1) of the Act. The language of the relevant statutory
provisions compels reinstatement of the petition.
Section 9(e)(1) of the Act directs the Board to conduct
elections upon the filing of petitions to rescind the au-
thority of unions and employers to enter into union-
security agreements “made pursuant to section 158(a)(3)
[8(a)(3)]” of the Act.3 The union-security clause at issue
here4 was “made pursuant to section 8(a)(3),” specifical-
ly, the first proviso to Section 8(a)(3). Section 8(a)(3)
makes it an unfair labor practice for an employer to dis-
criminate “in regard to hire or tenure of employment or

1 The grant of review was by a two-member Board. On August 27,
2010, a three-member panel affirmed the earlier decision to grant the
request for review.
2 The Petitioner filed a motion to recuse Member Becker, and the
Union filed an opposition. Consistent with Pomona Valley Hospital
Medical Center, 355 NLRB 234 (2010), the Petitioner’s request is
denied.
3 Sec. 9(e)(1) provides: (e) Secret ballot; limitation of elections
(1) Upon the filing with the Board, by 30 per centum or more of the
employees in a bargaining unit covered by an agreement between
their employer and a labor organization made pursuant to section
158(a)(3), of a petition alleging they desire that such authority be re-
scinded, the Board shall take a secret ballot of the employees in such
unit and certify the results thereof to such labor organization and to the
employer.
29 U.S.C. § 159(e)(1) (emphasis added).
4 The parties’ union-security clause provides in part:
Section 15.1 Union Security. The requirement that em-
ployees become members of the Union and remain in the
Union in good standing, as condition of employment [sic],
shall be deemed satisfied so long as a non-member of the
Union pays to the Union an amount equivalent to the Un-
ion’s regular dues and initiation fees, or such amounts re-
duced by the portion thereof, if any, not germane to collec-
tive-bargaining, contract administration or grievance ad-
justment. . . . [Emphasis added.]
any term or condition of employment to encourage . . .
membership in any labor organization.” The first provi-
so to this section provides, in relevant part, that nothing
in the Act “shall preclude an employer from making an
agreement with a labor organization . . . to require as a
condition of employment membership therein. . . .” 5
Absent the first proviso to Section 8(a)(3), the union-
security clause here would be unlawful, whether as pro-
hibited discrimination to encourage union membership or
as interfering with employees’ right under Section
8(a)(1) to refrain from assisting a labor organization.
Because the clause would be unlawful but for the first
proviso of Section 8(a)(3), the clause necessarily was an
“agreement . . . made pursuant to section 8(a)(3),” in the
words of Section 9(e)(1).
Moreover, the union-security clause, by its terms, falls
within the 8(a)(3) proviso. It expressly refers to a “re-
quirement that employees become members of the Union
and remain in the Union in good standing, as a condition
of employment.” Under the clause, the obligation to be a
union member—or at least to bear the financial incidents
of union membership–attaches to employment, without
more. All bargaining unit employees are subjected to
this requirement by virtue of their employment. It is
plainly a “condition of employment” within the meaning
of Section 8(a)(3). Our construction of that term is con-
sistent with the similar term “conditions of employment”
in Section 8(d), which defines the subjects over which
parties must bargain under Section 8(a)(5) and 8(b)(3).
A union-security clause long has been held to be a man-
datory subject of bargaining. See NLRB v. General Mo-
tors Corp., supra.
The Union’s argument is that the second part of the
union-security clause here takes it outside the ambit of
Section 9(e)(1). That part provides:

Section 15.2 Notwithstanding the above paragraph [see
fn. 4, supra], the language “as a condition of employ-
ment” shall not be construed under any circumstances
as the Union having the right to request the termination
of an employee or the Employer having an obligation
to terminate an employee for the failure to pay union
dues or Agency fees, or otherwise remain in good
standing.

The Union, then, would have us read 8(a)(3)’s reference to a
“condition of employment” narrowly, as reaching only un-
ion-security clauses enforceable by termination of the non-

5 The Supreme Court has interpreted Sec. 8(a)(3) “to mean that the
only ‘membership’ that a union can require is the payment of fees and
dues.” NLRB v. General Motors Corp., 373 U.S. 734, 742 (1963)
(“‘Membership’ as a condition of employment is whittled down to its
financial core.”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 646
complying employee.6 We reject that interpretation, for the
reasons already explained. The Union does not argue that
the union-security clause, by its terms, cannot be enforced
against individual employees. Indeed, its position is that the
clause provides the basis for court collection proceedings,
and it has threatened to sue employees (including the Peti-
tioner) for failing to pay the agency fees required under the
clause. That, by virtue of the clause, all employees purport-
edly are subject to legal action for failure to pay fees surely
is enough to make the clause a condition of employment for
purposes of Section 8(a)(3) and Section 9(e)(1).7 The Re-
gional Director therefore erred by finding that the method of
enforcement placed the union-security clause outside of
Section 8(a)(3).
We find that the union-security clause here constitutes
an agreement made pursuant to Section 8(a)(3), and thus
that Section 9(e)(1) directing the Board to process a peti-
tion to deauthorize the union-security clause is properly
invoked here. Given the statutory language, a contrary
ruling would require compelling contrary legislative his-
tory or a compelling argument that permitting the peti-
tion to proceed is contrary to the policy underlying Sec-
tion 9(e)(1). The Union presents neither.
Nor are we persuaded by the view of our dissenting
colleague. Our interpretation of what constitutes a con-
dition of employment comes easily within the dictionary
definition he cites. Because it is impossible for the em-
ployees here to be employed without being subject to the
contractual union-security clause, the obligation to finan-
cially support the Union is “something established . . . as
a requisite to the doing . . . of something else,”8 i.e., be-
ing employed. Our colleague also argues that the clause
does not implicate Section 8(a)(3) because its obligations
are not enforceable by the employer, through termina-
tion. But it is clear (1) that the clause encourages union
membership (as that term in Section 8(a)(3) had been
construed by the Board), by purporting to impose an en-
forceable legal obligation on employees to financially
support the Union; and (2) that the enforceability of the
obligation is attributable to the employer, whose agree-
ment to the clause is the predicate for any lawsuit
brought by the Union against an employee. Finally, our
colleague’s policy arguments prove too much. The dis-
sent is correct that processing the deauthorization peti-

6 No party disputes that the union-security clause precludes the Un-
ion from requesting that the Employer terminate employees who fail or
refuse to pay agency fees to the Union.
7 We need not decide whether the clause, in fact, creates a cause of
action or whether a suit to enforce the clause would be permitted by the
Act.
8 Webster’s Third New International Dictionary, 473 (1981) (“condi-
tion”).
tion here threatens to deprive the Union of the benefit of
its bargain, as well as to permit employees to get the
benefits of union representation without paying for them.
But those are consequences inherent in the operation of
Section 9(e)(1) of the Act, and we are not free to revisit
policy choices that Congress has already made.
ORDER
The Regional Director’s administrative dismissal is re-
versed. This case is remanded to the Regional Director
for further appropriate action.

MEMBER PEARCE, dissenting.
This case presents the novel issue of whether, pursuant
to Section 9(e)(1) of the Act, the Board should process a
petition to rescind the authority of an employer and un-
ion to enter into an agreement requiring unit employees
to pay agency fees to the union, even if loss of employ-
ment is not a possible sanction for the employees’ non-
payment.
Contrary to the majority, I find that the statute does not
compel the Board to process the petition. Rather, the
plain language of the statute, Board Rules and Regula-
tions, and relevant case law support the Regional Direc-
tor’s decision to dismiss the petition. Further, dismissal,
in my view, better effectuates the policies of the Act.
Accordingly, I respectfully dissent from my colleagues’
decision to reinstate the petition.
I.
Initially, I disagree with my colleagues’ conclusion
that Section 9(e)(1) of the Act “compels” the Board to
process the petition. Although the collective-bargaining
agreement between the Employer and the Union contains
a union-security clause requiring unit employees, includ-
ing the Petitioner, to pay fees to the Union, Section
9(e)(1) does not generally state that the Board must pro-
cess petitions to rescind the authority of employers and
unions to enter into union-security agreements. Indeed,
Section 9(e)(1) neither uses the term “union-security
agreement” nor states that the Board must process peti-
tions to invalidate contract clauses requiring employees
to financially support a union. Instead, Section 9(e)(1)
merely requires the Board to conduct elections upon the
filing of appropriately supported petitions to rescind the
authority of unions and employers to enter into agree-
ments made pursuant to Section 8(a)(3).1

1 Thus, Sec. 9(e)(1) provides:
Upon the filing with the Board, by 30 per centum or more of the em-
ployees in a bargaining unit covered by an agreement between their
employer and a labor organization made pursuant to section 158(a)(3)
of this title, of a petition alleging they desire that such authority be re-
scinded, the Board shall take a secret ballot of the employees in such
LOS ANGELES TIMES COMMUNICATIONS, LLC 647
Accordingly, the dispositive issue is whether the un-
ion-security agreement in this case can be said to be “an
agreement . . . made pursuant to [S]ection [8](a)(3).” For
the following reasons, I find that article XV,2 the parties’
union-security agreement, does not constitute such an
agreement.
The text of the Act and Board’s Rules and Regulations
demonstrate that an agreement made pursuant to Section
8(a)(3) is one that requires union membership as a condi-
tion of employment. Thus, although Section 8(a)(3)
makes it an unfair labor practice for an employer to dis-
criminate in regard to hire or tenure of employment (or
any term or condition of employment) to encourage
membership in a union, it also contains a proviso which
explicitly permits an employer to make an agreement
with a union that requires union membership as “a condi-
tion of employment.” Further, 8(a)(3) references Section
9(e) and provides that an employer is not precluded from
making an agreement with a union to require union
membership as a condition of employment unless the
employees have voted—in an election conducted pursu-
ant to Section 9(e)—to rescind the authority of their un-
ion to make just such an agreement. Given that statutory
language, it is not surprising that the Board’s rules and
regulations presuppose that an agreement made pursuant
to Section 8(a)(3) is one that requires membership as a
condition of employment. Thus, Section 101.27(a)(2) of
the Board’s Rules and Regulations requires regional staff
in 9(e)(1) cases to ascertain “[w]hether there is in effect
an agreement requiring as a condition of employment
membership in a labor organization.” 29 CFR
§101.27(a)(2) (2010). Similarly, Section 102.83 of the
Board’s Rules and Regulations provides, “A petition to
rescind the authority of a labor organization to make an
agreement requiring as a condition of employment mem-
bership in such labor organization may be filed by an
employee or group of employees on behalf of 30 percent
or more of the employees in a bargaining unit covered by

unit and certify the results thereof to such labor organization and to the
employer.
2 Art. XV provides, in relevant part:
Section 15.1 The requirement that employees become members of the
Union and remain in the Union in good standing, as a condition of
employment, shall be deemed satisfied so long as a non-member of
the Union pays to the Union an amount equivalent to the Union’s reg-
ular dues and initiation fees. . . .
Section 15.2 Notwithstanding the above paragraph, the language “as
a condition of employment” shall not be construed under any circum-
stances as the Union having the right to request termination of an em-
ployee or the Employer having an obligation to terminate an employee
for the failure to pay union dues or agency fees, or otherwise remain in
good standing.
such an agreement.” 29 CFR §102.83 (2010). In short,
an agreement that is made pursuant to Section 8(a)(3)—
and which can be subject to a petition under Section
9(e)(1)—is one that requires union membership as a
condition of employment, rather than union membership
generally.3
Because the Act does not define “condition of em-
ployment,” it is necessary to resort to settled principles of
statutory construction to determine whether article XV
requires membership as a condition of employment. As
in all cases of statutory construction, the appropriate
“starting point ‘must be the language employed by Con-
gress,’”4 given its common meaning, absent a clearly
expressed legislative intention to the contrary.5 Further,
“‘effect must be given, if possible, to every word, clause
and sentence of a statute,’”6 with due consideration to the
dictionary definitions of the statutory terms.7
The common meaning of the statutory term, “condition
of employment,” is something that is required or neces-
sary for employment.8 Article XV clearly does not re-
quire union membership as a “condition of employment,”
and accordingly does not qualify as an “agreement . . .
made pursuant to” Section 8(a)(3). Put simply, the
clause’s requirement that employees pay agency fees to
the Union does not constitute “a condition” of employ-
ment because loss of employment is not a possible sanc-
tion for failing to pay agency fees under article XV.9

3 As the majority notes, the Supreme Court has put a gloss on the
term “membership,” and has held that the only membership that a union
can require is the payment of dues and fees.
4 American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) (cita-
tion omitted).
5 2A Norman J. Singer, Sutherland on Statutory Construction §
47.28 p. 248 (5th ed. 1992) (“Statutory Construction”).
6 2A Statutory Construction § 46.06 p. 119 (citation omitted).
7 See 2A Statutory Construction, § 47.28 p. 248 (“It is not unusual to
find cases which indicate that the approved usage of words can be
established by the definition of a recognized dictionary.”). Cf. Allen-
town Mack Sales & Service v. NLRB, 522 U.S. 359, 367 (1998) (Su-
preme Court consults dictionary for definition of terms used in Board’s
legal standard governing polling and withdrawal of recognition).
8 Webster’s Third New International Dictionary, (1981) at 473 de-
fines “condition” as “something established or agreed upon as a requi-
site to the doing or taking effect of something else; 2. a circumstance
that is essential to the appearance or occurrence of something else:
prerequisite.” The word “requisite” in turn is defined as “something
that is required or necessary.” Id. at 1929. And, “prerequisite” is de-
fined as “something that is required beforehand.” Id. at 1791.
9 The majority notes that the phrase “condition of employment” ap-
pears in one portion of art. XV of the parties’ collective-bargaining
agreement. However, just as job titles are not controlling in determin-
ing supervisory status under Sec. 2(11) of the Act, nor should contract
language necessarily control whether something is a condition of em-
ployment within the meaning of Sec. 8(a)(3). This is particularly true
here where the remainder of art. XV makes clear that the Union lacks
the right to request termination of an employee who fails to pay the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 648
Nor do the Petitioner or my colleagues point to any-
thing in the legislative history that suggests that it was
the intent of Congress to require the Board to process
petitions to invalidate contract provisions that cannot
impact an employee’s tenure of employment. Rather, the
legislative history demonstrates that Congress was con-
cerned with union-security agreements that compel indi-
viduals—on pain of forfeiting their jobs—to become and
remain union members. In describing what was to be-
come Section 9(e)(1), the House Report stated that the
proposed amendment “dispense[s] with the requirement
of existing law that an election be held before a labor
organization and an employer may make a union-shop
agreement,” yet “continues to safeguard employees
against subjection to union-shop agreements which a
majority disapproves,” and accomplishes this by
“provid[ing] that the Board shall conduct elections . . . to
determine whether the union’s authority to enter into a
union-shop arrangement shall be rescinded.” H.R. Rep.
82–082, 82 Cong., 1st Sess. at 2–3 (1951). The House
Report’s use of the phrase “union shop agreement” in-
stead of union-security agreement is significant. A union
shop agreement requires union membership as a condi-
tion of employment, something the union-security clause
in this case simply does not do.10
Case law interpreting Section 8(a)(3) likewise supports
the conclusion that an agreement that requires union
membership as a “condition of employment” means an
agreement that conditions job retention on an employee’s
satisfying his or her financial obligations under the
clause. For example, in Aerospace Workers v. NLRB,
133 F.3d 1012, 1014–1015 (7th Cir. 1998), Judge Posner
noted that Section 8(a)(3)’s proviso forces an employee
to financially support the union’s collective bargaining
activities “as a condition of keeping his job.” And, in
California Saw & Knife Works, 320 NLRB 224, 225,
232–233, 235 fn. 57 (1995), the Board observed that the
issue of employees’ rights under General Motors and
Communications Workers v. Beck, 487 U.S. 735 (1988)
(Beck) does not arise absent a contractual union-security

agency fees, and the Petitioner concedes that loss of employment is not
a possible sanction for employee nonpayment.
10 That Congress’ focus was on union-security clauses requiring un-
ion membership as a condition of employment is demonstrated by
language in the House Conference Report on the 1947 predecessor
version of the statute that: “Under the provisions of the conference
agreement an employer is permitted to enter into an agreement with a
labor organization . . ., whereby the employer agrees that he will em-
ploy only employees who . . . are members of the labor organization
concerned. . . . This permission, however, is granted only if . . . a ma-
jority of the employees in the bargaining unit in question eligible to
vote have authorized the union to make such an agreement.” H.R.
Conf. Rep. 80–510 at 41, reprinted in 1 NLRB, Legislative History of
the LMRA, 1947 at 545 (1947). (emphasis added).
clause entitling a union to compel an employer to dis-
charge noncompliant employees.
My colleagues reason that article XV “necessarily”
was an agreement made pursuant to Section 8(a)(3) be-
cause, but for the first proviso to Section 8(a)(3), the
clause would violate Section 8(a)(3) (and derivatively
Section 8(a)(1)). However, Section 8(a)(3) does not per
se prohibit actions which encourage union membership;
it only prohibits the encouragement of union membership
that is accomplished by employer discrimination. See
Radio Officers’ Union v. NLRB, 347 U.S. 17, 42–43
(1954).11
Indeed, the overall structure of Section 8(a)(3) speaks
in terms of employer actions against employees. The
first sentence makes it unlawful for an employer to dis-
criminate against employees to encourage or discourage
union membership, while the provisos, on the other hand,
permit the employer to enter into an agreement with a
union that entitles the employer to discriminate against
employees—by discharging them—for failing to pay
dues and fees to the Union. In contrast, article XV nei-
ther requires nor contemplates any employer action
against employees who fail to pay agency fees. Instead,
as the Petitioner notes, the Union attempts to enforce the
clause merely by threatening civil collection lawsuits in
state court.12
Finally, I disagree with the Petitioner’s argument that
Andor Co., 119 NLRB 925 (1957), and Covenant Avia-
tion Security, LLC, 349 NLRB 699 (2007), mandate pro-
cessing of the petition. Neither decision addresses the
applicablity of “condition of employment” in the Section
8(a)(3) proviso to a union-security clause that does not
even purport to authorize any adverse employment ac-
tion. In Andor, the union sought dismissal of a deauthor-
ization petition, arguing in effect that because the union-
security clause violated Section 8(a)(3) by authorizing
the employer to discharge employees who were in arrears

11 I also find unpersuasive my colleagues’ reliance on Sec. 8(d) to
support their position as the language of Sec. 8(d) is broader than the
relevant language in Sec. 8(a)(3). Although the phrase “terms and con-
ditions of employment” appears in Sec. 8(d), it does not appear in the
relevant portion of Sec. 8(a)(3).
12 In any event, this is not an unfair labor practice proceeding, and
my colleagues’ point proves too much. A collective-bargaining agree-
ment may contain various clauses which could be said to encourage
union activity. For example, a clause bestowing superseniority on
union stewards plainly encourages union activity, because an employee
can obtain the valuable benefit of superseniority only by becoming a
steward. Notwithstanding that fact, we do not permit employees to
vote to rescind the authority of their employer and union to negotiate
superseniority provisions because such provisions are not made pursu-
ant to Sec. 8(a)(3) as they do not require membership as a condition of
employment. So too, the art. XV union-security clause is not an
agreement made pursuant to Sec. 8(a)(3).
LOS ANGELES TIMES COMMUNICATIONS, LLC 649
in union assessments,13 it was not “made pursuant to sec-
tion 8(a)(3)” and therefore was not subject to deauthori-
zation under Section 9(e)(1). 119 NLRB at 926–928.
The Board rejected the argument and directed that the
deauthorization vote proceed. No party contended that
the payment obligation was not a condition of employ-
ment; in fact, the union-security provision explicitly au-
thorized the employer to discharge employees who re-
fused to pay dues. Id. at 926.
Covenant Aviation merely addressed whether the
showing of interest supporting a deauthorization petition
may predate the execution of a contract. 349 NLRB at
699. The meaning of “condition of employment” in the
8(a)(3) proviso was not addressed in any manner. In-
deed, the Petitioner concedes that the Board has “never
opined” on the specific issue presented here. My col-
leagues, therefore, quite properly do not even seek to rely
on that case.
In sum, the plain language of the statute, the relevant
case law, and our own rules and regulations lead me to
conclude that the petition should be dismissed because
article XV does not require membership as a condition of
employment and therefore does not constitute an agree-
ment made pursuant to Section 8(a)(3) of the Act.
II.
I also believe that dismissal of this deauthorization pe-
tition will better serve the policies of the Act than will
the majority’s decision to reinstate the petition.
First, dismissal of the petition leaves in place the un-
ion-security clause that the parties negotiated, thereby
furthering the Act’s policy of freedom of contract. See
H. K. Porter Co. v. NLRB, 397 U.S. 99, 108 (1970). The
majority’s decision to process the petition potentially
deprives the Union of the benefit of its bargain while

13 The 8(a)(3) proviso permits the discharge of employees only for
nonpayment of dues and initiation fees, not for nonpayment of assess-
ments or other charges.
leaving the employer free to enjoy the price it presuma-
bly exacted in exchange for its agreeing to the clause.
In addition, the Regional Director’s dismissal of the
petition—which leaves the union-security clause in ef-
fect—takes into account Congress’ concern that “parties
to a collective bargaining agreement be allowed to pro-
vide that there be no employees who are getting the ben-
efits of union representation without paying for them.”
Beck, 487 U.S. at 750 (citation omitted). While the
closed shop and the abuses associated with it were the
principal target of the Taft-Hartley amendments of Sec-
tion 8(a)(3), Congress was “equally concerned” that the
employees who pay for the benefits of union representa-
tion through their dues be permitted to prevent other em-
ployees who enjoy those benefits from “rid[ing] along
freely.” Id. at 748 (citation omitted). Permitting invali-
dation through the Board’s processes of a union-security
clause that cannot affect any employee’s employment
fails to give appropriate weight to all of the policy con-
siderations underlying the operative statutory provisions.
Moreover, dismissal of the petition does not run afoul
of the Act’s policy of insulating employees’ jobs from
their organizational rights (Radio Officers’ Union v.
NLRB, 347 U.S. at 40), because loss of employment is
not a possible sanction for unpaid agency fees. While
the clause obligates employees to pay agency fees to the
Union, it does not provide for the employment of any
employee to be terminated or otherwise affected by his or
her failure to pay those agency fees.
At bottom, I conclude that the harms of impairing the
parties’ freedom of contract and discounting the congres-
sional concern about free riders outweigh the fact that
dismissal of the petition forecloses one avenue whereby
employees can rid themselves of the unwanted obligation
to support a union. I note that employees would remain
free to petition to decertify the Union at an appropriate
time.
For all these reasons, I would affirm the Regional Di-
rector’s dismissal of the petition.