The Rights and Responsibilities of Employees Confronted With Union
Discipline By Rossie D. Alston, Jr.
Mr. Alston is staff attorney with the Notional Right to Work Legal Defense Foundation, Inc. in Springfield, Virginia.
© 1987 by Rossie D. Alston, Jr.
The difficult decision of whether to join or support a labor organization often con- fronts the individual in the workplace. If he joins such an organization voluntarily, the issue sometimes becomes whether he must support its every action. In a plural- istic society such as ours, it is hardly surprising that the opinions of an individ- ual employee do not always coincide with those of the labor organization charged with representing that employee’s bar- gaining unit.
Such differences of opinion place the employee in a difficult position. While he may firmly believe in his decision not to support the union on a particular issue, if the employee is a union member, the fact remains that the union has the power to discipline him for not “toeing the union line,” This situation usually arises during a strike. The decision of whether or not to support the union is often complicated by the employee’s need to meet his family’s financial obligations.
Unfortunately, most people do not either know or clearly understand their legal alternatives under the circum- stances outlined above. This article is designed to instruct both the individual employee and the practicing attorney on the rights of an employee who chooses to return to work during a strike and on the obligations imposed upon the union under federal and state law if it attempts to
discipline that employee for violating union rules.
Any discussion of union discipline must begin with the premise that a labor organ- ization may take disciplinary action against its voluntary members only.^ The seminal case of Scofield v. NLRB states: “[A] union [is] free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has imbedded in the labor laws, and is reasonably enforced against union mem- bers who are free to leave the union and escape the rule.” ^ Thus, a union cannot discipline anyone who is not a formal member of that union. Moreover, even a member can defend himself against a union’s effort to discipline him if he can demonstrate that his membership was not voluntary.
The employee often mistakenly believes that, as a condition of his continued employment, he must become and remain a formal member of the labor organization representing his bargaining unit.^ Most individuals in the workplace do not real- ize that they cannot lawfully be required to be a formal member of a union as a condition of employment. (A formal mem- ber is one who signs a union membership card and thereby obligates himself to abide by the union’s rules and regula- tions.) What a union or comjiany often will fail to tell employees is that they
‘ NLRB V. Granite State Joint Board Textile Workers Local 1029, 69 LC fl 13,199, 409 US 213, 93 SCt 385 (SCt, 1972).
2 59 LC fl 13,373,394 US 423 (1969) (emphasis added).
‘ Surprisingly, this mistaken belief is found among work- ers even in those states which have right-to-work laws which invalidate any union security agreement requiring union membership as a condition of employment.
have a right to refrain from this formal membership.
In a right-to-work state,”* this “right to refrain” is complete. In states that do not have a right-to-work law, the union and the employer may have a contract that requires some degree of employee support for the union. However, even in those states, formal membership cannot be required; the most that can be required (regardless of the contract’s wording) is what the courts have called “financial core” membership, which entails payment of an “agency shop fee,” Accordingly, there is a very important distinction between formal membership in a labor organization and “financial core” mem- bership or “agency fee” payor status.
Supreme Court Interpretation In NLRB V. General Motors,^ the
United States Supreme Court examined the concept of “membership” in a labor organization where there is a union shop agreement in effect,^ In discussing the congressional intent of the Taft-Hartley Amendments/ the Court held that: “[T]he burdens of membership upon which employment may be conditioned are expressly limited to the payment of initiation fees and monthly dues. It is permissible to condition employment upon membership, but membership, inso- far as it has significance to employment rights, may in turn be conditioned only upon payment of fees and dues, ‘Member-
ship’ as a condition of employment is whittled down to its financial core.” ^
Thus, as interpreted by the Supreme Court, the Taft-Hartley Amendments allow a union and employer to require of an employee as a condition of employ- ment only the payment of dues and initia- tion fees, nothing more. There can be no obligation to sign a membership card or to take an oath of membership. In point of fact, the union shop is the practical equivalent of the agency shop. It is fairly well established that an employee subject to an agency shop or union shop contract need actually pay only that portion of union dues that covers the union’s costs of collective bargaining, contract adminis- tration, and grievance adjustment not the costs incurred for numerous other union activities which are political or ideological in nature. The determination of collective bargaining and noncollective bargaining costs is a very complicated matter; if an agency shop fee payor thinks the fee being demanded is too high, expert legal help should be obtained.
Many union security provisions purport to require an employee to join a union as a condition of employment, but such provi- sions are misleading and cannot be enforced in their absolute terms,^ Accord- ingly, when an employee is confronted with demands regarding union member- ship, he may fulfill such demands by meeting only the financial obligations of
* The states which currently have right-to-work laws are: Alabama, Arkansas, Arizona, Florida, Georgia, Idaho, Iowa, Kansas, Louisiana, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wyoming. In these states, neither a union nor an employer may require an employee to become or remain a union member in order to keep his job. In any of the other states, one should ask to see the section of the collective bargaining agreement that requires union membership. Regardless of what the contract seems to say, one cannot be required to do more than pay a fee (which should certainly be less than full union dues) to the union.
5 47 LC H 18,285,373 US 734 (1963).
‘ A union shop agreement requires employees either to join or to pay dues to the union as a condition of employ- ment. Such an arrangement is to be distinguished from a closed shop, which restricts an employer to hiring only
members of the union that is a party to the collective bargaining agreement. The closed shop is illegal and unen- forceable in all states.
‘ The Taft-Hartley Amendments were adopted as part of the National Labor Relations Act, the federal regulatory scheme governing private sector labor relations, in 1947,
^ General Motors; see also Railway Employees’ Dept v. Hanson, 30 LC fl 69,961, 351 US 225 (1956).
‘Most union security clauses read something like the following: It shall be a condition of employment that all employees covered by this agreement shall become and remain members of the union in good standing on or before the thirtieth day after this contract is signed, and all new employees covered by this agreement shall become and remain members of the union in good standing on or before the thirtieth day after their first day of work.
February, 1987 Labor Law Journal
membership. He cannot be discharged for reftising to join the union,'”
For all practical ptirposes, the union has only a limited agency relationship with the individual “financial core mem- ber” or “agency fee” payor. Most impor- tantly, the union has no power or authority to discipline an individual employee who opts for “financial core” or “agency fee” status and refrains from for- mal union membership,” Since a union can discipline only those employees who are formal members, the “financial core member” or “agency fee” payor shields himself from fines and other forms of union discipline that are imposed on members who violate union rules.
Resignation The U,S, Supreme Court, in NLRB v.
General Motors, recognized the right of any employee to work without being a formal union member as long as that employee pays uniform dues and fees to the union,’^ Unfortunately, many employ- ees are unaware of that right at the time they are hired or else lack the knowledge of how to exercise it. In addition, good reasons exist for employees to join the union that represents their bargaining unit. For example, membership gives them a voice in the negotiation of the collective bargaining agreement that determines their wages and working con- ditions. It also gives them a vote in the election of those union officials charged with administering the agreement, and, maybe most important, union member- ship can bring a sense of solidarity or banning together for a common cause. The question thus arises as to whether an
individual who has joined a union can both pursue his best interests, follow his conscience, and avoid disciplinary action for failing to adhere to the union’s dic- tates and rules. In short, does a union member have a right to sever his relation- ship with the union by resigning?
In its decision in Pattern Makers’ League v. NLRB,^^ the Supreme Court answered many questions from lawyers and laymen alike regarding the right to resign from union membership, even in the face of rules or contracts apparently restricting resignation. The Court held that the National Labor Relations Board had reasonably interpreted the National Labor Relations Act (NLRA) when it con- cluded that an individual employee does have the right to resign from a union at any time, notwithstanding any union rule restricting resignation. Of particular sig- nificance is the Court’s emphasis on the fact that voluntary unionism is a funda- mental policy of the Act,
In Pattern Makers, the Court also reaf- firmed its holding in NLRB v. Granite State Joint Board, Textile Workers Local 1029, where it said: “[T]he power of the union over the member is certainly no greater than the union-member contract. Where a member lawfully resigns from a union and thereafter engages in conduct which the union rule proscribes, the union commits an unfair labor practice when it seeks enforcement of fines for that con- duct. That is to say, when there is a lawful dissolution of a union-member rela- tion, the union has no more control over the former member than it has over the man in the street,'”*
‘” E.g., NLRB V. Gold Standard Enterprises, Inc., 94 LC H 13,566, 679 F2d 673 (CA-7, 1982); NLRB v. Hershey Foods Corp., 76 LC ! 10,820, 513 F2d 1083 (CA-9, 1975). The only courts that have addressed the issue have applied the same rule under the Railway Labor Act. Marden v. Machinists, 84 LC 110,700, 576 F2d 576 (CA-5, 1978); Sandsberry v. Machinists, 30 LC 1170,131, 156 Tex 340, SW2d 412 (1956).
” Pattern Makers’ League v. NLRB, 105 SCt 3064 (1985); Service Employees Local 680 v. NLRB, 86 LC II 11,518,601 F2d980(CA-9, 1979).
‘^ For an interesting discussion of the issues surrotJnding the collection of dues and fees from nonmembers, see T. Haggard, Compulsory Unionism, the NLRB and the Courts: A Legal Analysis of Union Security Agreements, 132-44 (1977).
“Cited at note 11.
“Ci tedat note 1.
Thus, under current U,S, Supreme Court and NLRB decisions, a union mem- ber is free to resign from his union at any time and cannot subsequently be disci- plined by the union, even if its constitu- tion or bylaws purport to restrict the member’s right to resign. When an indi- vidual severs the contractual union-mem- ber relationship through resignation, the union’s right to discipline him ceases. Moreover, if a union attempts to disci- pline a former member for events that occurred after his resignation, it violates Section 8(b)(l)(A) of the NLRA,
In Laborers Northern California Dis- trict Council (Hayward Baker),^^ the NLRB concluded that, where a union unlawfully prosecutes disciplinary charges against employees in retaliation for their exercise of statutory rights, the employees should be awarded their costs (including legal fees) in defending against those charges, (One might also argue that a union’s filing of a state court lawsuit to enforce discipline against a nonmember provides a basis for a civil remedy under an abuse of process theory,)
Although the Supreme Court and the NLRB have recognized an individual’s right to resign from a labor organization, they have not established specific guide- lines describing how a resignation is prop- erly accomplished. Moreover, the few decisions involving different methods of submitting a resignation are inconsistent as to how the intent to sever membership must be communicated. For example, in one decision, the NLRB concluded that when a union member informed the union’s president that he was resigning and then crumpled and threw away his union card, saying, “I quit,” that individ- ual had effectively resigned,’^ On the other hand, a California court has held
that an individual does not effectively resign by stating, in a chance, casual meeting, that he was quitting the union,”’
Some employees believe that their union affiliation ceases if they simply write to their employers and cancel their authorization for the deduction of dues from their paychecks. However, the NLRB has held that cancellation of authorization alone is not sufficient to constitute a notice of resignation,’^ The theory presumably behind the Board’s conclusion is that an individual cancelling his dues deduction authorization does not necessarily want to terminate his union membership but may only desire to make dues payments directly to the union. Therefore, an employee who wants to resign from union membership must do more than revoke his dues check-off.
Electrical Workers Local 66 (Houston Lighting & Power Co.) provides a good statement of the general rule concerning effective withdrawal from union member- ship. The Board held that “a member may resign from the union at will so long as the desire to resign is clearly communicated. Further, such communication may be made in any feasible way, and no particu- lar form or method is required,” ‘^
Accordingly, if a member desires to ter- minate his relationship with a labor organization through resignation, the method chosen should be one which unequivocally states that intention. It should be accomplished in a manner which ensures that the union receives notice of the resignation.
The best course to follow entails the individual’s writing of a letter that clearly states his desire for immediate termina- tion of his union membership and then his sending that letter, by certified mail, return receipt requested, to the union and
‘5 275 NLRB No. 48 (1985).
‘^Mechanical & Allied Production Workers Local 444 (Pneumatic Scale Corp.), 173 NLRB 325 (1968), enforced 427 F2d 883 (CA-1,1970).
” District Council v. Smith, 61 LRRM 2208 (Santa Bar- bara, Cal. Mun. Ct., 1966),
‘8 See Machinists District Lodge 99, 1972 CCH NLRB 123,782,194 NLRB 938 (1972).
‘« 1981-82 CCH NLRB f 19,107, 262 NLRB 483 (1982).
February, 1987 Labor Law Journal
to the employer. There are no magic words that must be used, A copy of the letter and the return receipt should be kept in case the individual needs proof that the union received the resignation. Because a resignation is not effective until the union receives it, the individual should avoid conduct that could be consid- ered violative of union rules for a few days after mailing the letter. If time is of tiie essence, the letter to the union should be delivered in person; a written acknowledg- ment of its receipt should be obtained or, alternatively, a reliable friendly witness should be present.
Defenses For The Union Member While the preceding discussion empha-
sizes the need to resign (if that is one’s choice) prior to engaging in conduct that a union might claim violates its rules and for which it might impose discipline, situ- ations may arise where there is insuffi- cient time to execute a valid resignation or where the member, through a procedu- ral or technical error, fails to resign prop- erly. Under such circumstances, it may still be possible to defend against a union’s effort to enforce discipline through the state courts.
For individuals who are formal, bona fide members of the labor organization that is attempting to discipline them, the Landrum-Griffin Act provides a “Bill of Rights of Members of Labor Organiza- tions,” This “Bill of Rights” contains sev- eral safeguards against the improper imposition of disciplinary action.
Section 101(a)(5) of the Landrum-Grif- fin Act delineates the minimum procedu- ral protections that must be given to union members before they can be sub- jected to union discipline: “No member of any labor organization may be fined, sus- pended, expelled, or otherwise disciplined
except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing,”
These are the minimum standards required under federal law; the states (and unions) remain free to adopt stricter rules. The safeguards of Section 101(a)(5) apply only to individuals who were for- mal, voluntary union members when they engaged in the conduct alleged to have been violative of union rules. These pro- tections are generally used by litigators as an offense which provides disciplined union members access to the federal courts, as the Act gives the U,S, district courts jurisdiction over actions for infringement of the rights guaranteed by it. However, these protections can easily be transformed into affirmative defenses for individuals attempting to ward off enforcement of union discipline in state
In addition to such due process defenses, other “notice” types of defenses should be raised if they are available. For example, union members are often not given a copy of the union’s constitution or bylaws, and this omission raises the possi- bility of arguing that the individual being disciplined was unaware that his alleged offense was a violation of union rules or that he could be sued for violating the union’s constitution or bylaws. It would logically follow that the union’s failure to give adequate notice to the accused of his rights and obligations under its constitu- tion and bylaws serves to nullify any “contract” into which the accused alleg- edly entered,^’
If one plans to raise these due process defenses, it is advisable to review the
^ A very good discussion of how the case law has devel- oped with regard to the specific procedural protections of Section 101(a)(5) is found in J. Bellace & A, Berkowitz, The Landrum-Griffin Act: Twenty Years of Federal Protection of Union Members’ Rights (Labor Relations and Public Policy Series No. 19, 1979), 70-83.
^’ The Supreme Court’s language in NLRB v. Boeing Co., 71 LC 113,668, 412 US 67 (SCt, 1973), and that of the circuit court in Booster Lodge No. 405 v. NLRB, 67 LC 112,404, 459 F2d 1143 (DC-D of C, 1972), affirmed 71 LC 113,669,412 US 84 (1973), would support this approach.
union’s bonstitution and bylaws regarding the procedures for disciplining members. As mentioned previously, the Landrum- Griffin safeguards are the minimum stan- dards required. Accordingly, where the union has adopted specific standards for disciplining union members, it must adhere to those standards regardless of whether or not they exceed the minimum set by Landrum-Griffin. This type of defense is equitable in nature and is an attractive one that even the most unso- phisticated judge can understand.^^
General State Law Contract Defenses
The distinction between actual and “financial core” membership cannot be stressed enough. When an employee signs a union membership card, he agrees to abide by all union rules and enters into an enforceable contract between himself and the union. As with any other solemn legal contract, however, a court can enforce it only against a voluntarily contracting party. If an employee was misled as to the necessity of union membership for job security, state law may provide relief from the enforcement of the contractual obligation.
Although federal law governs the terms of a collective bargaining agreement between a labor organization and an employer, state law principles of con- tracts or voluntary associations usually control the validity of union membership contracts in effect between the labor organization and the individual employee.^^ Thus, under basic state con- tract formation principles, any individual who becomes or remains a member of a labor organization through coercion.
duress, or fraud in the inducement has a valid defense to any claim that a union has the power to fine the employee for violating those union rules that apply to formal members.^*
As previously pointed out, state law impacts forcefully in the resolution of union fine issues. Therefore, it is benefi- cial to look at the development of the law with regard to general state law contract defenses to breach of contract claims.
In NLRB V. Boeing Co., a companion case to Booster Lodge, the U.S. Supreme Court considered issues pertaining to the amount an individual could be fined for engaging in conduct that was found to be violative of union rules. It held that the amount of an enforceable fine is a matter of contract between the member and the union. Therefore, “Issues as to the reason- ableness or unreasonableness of such fines must be decided upon the basis of the law of contracts, voluntary associations, or such other principles of law as may be applied in a forum competent to adjudi- cate the issue. Under our holding, state courts will be wholly free to apply state law to such issues at the suit of either the union or the member fined.” ^̂
With such an explicit recognition of the state court’s ability to resolve issues of reasonableness, claims of the fine’s undue severity may be well received. While the Supreme Court also stated that issues con- cerning the reasonableness of a fine should be determined by the states and not by the NLRB, the NLRB does consider charges that a fine constitutes an attempt to coerce an individual in the exercise of his NLRA Section 7 rights or is discrimi- natory (e.g., where one person is fined
^ This defense has been successfully used in many differ- ent jurisdictions by individuals challenging union discipline. See Gross v. Kennedy. 40 LC It 66,432,183 FSupp 750 (DC- NY, 1960).
^ See NLRB v. Allis-Chalmers. 55 LC ! 11,972, 388 US 175, (SCt, 1967); Scofield v. NLRB. 59 LC H 13,373, 394 US 426; NLRB v. Boeing Co.. 412 US at 75-76. This statement must be qualified with the understanding “that many union rules, although valid under the common law of associations, run afoul of Section 8(b)(l)(A) of the [National Labor Rela-
tions] Act.” Pattern Makers, 105 SCt at 3074-75. That section prohibits union restraint or coercion of employees in the exercise of their right to refrain from union activity.
“See Buckley v. Television Artists (AFTRA), 73 LC H 14,506, 496 F2D 305 (CA.2, 1974), cert, denied, 419 US 1093 (1974). Compare Teamsters Local 302 v. Vevoda, 772 F2d 530 (CA-9, 1985), cert, denied US , 106 SCt 1246, 54 USLW 3564 (February 25, 1986) (No. 85-1098).
” Boeing, cited at note 21.
February, 1987 Labor Law Journal
$200 and another person who engaged in the same allegedly objectionable conduct is fined $5,000). In addition, a claim of extenuating circumstances could be offered as part of a question as to the reasonableness of the fi
As a direct corollary of this prerogative of the state courts to determine the per- missibility of union discipline on pure con- tract law considerations, it can also be argued that the union must prove the damage it suffered as a result of the alleged objectionable conduct. In any civil case, the plaintiff is required to meet its burden of proof with regard to damages before it can be successful. A union will generally seek to recover the amount of money that the dissident earned during the time he engaged in the objectionable conduct. However, this amount can, for the most part, be considered arbitrary, bearing no relation to any “damage” the union may have suffered as a result of an individual’s return to work during a strike. As the normal strike involves many people, including supporters and nonsup- porters, it would be difficult, if not impos- sible, to determine what damage one particular individual caused the union by crossing the picket line and returning to work.
In summary, one can say that the law of union discipline adheres to two basic tenets: the contract theory and the proce- dural due process doctrine. Many states have developed their own bodies of law on this subject, and a review of state court decisions will provide some insight as to the particular defenses which can be raised by a union member who has been disciplined by his union. Moreover, the U.S. Supreme Court and the NLRB have made it clear that employees can protect themselves against union discipline by not joining or by resigning from the union.
notwithstanding the existence of a union security agreement compelling “member- ship.”
Despite the existence of this ever-devel- oping area of law interpreting employee rights and obligations, usually neither management nor the labor organization involved can be depended upon to give the employee an adequate explanation of his rights and obligations. Rights that have been developed through Supreme Court and Board precedent are hollow when an individual knows nothing of their existence.
Justice Black pointed out this problem almost twenty years ago: “Few employees forced to become ‘members’ of the union by virtue of the union security clause will be aware of the fact that they must some- how ‘limit’ their membership to avoid the union’s court-enforced fines. Even those who are brash enough to attempt to do so may be unfamiliar with how to do it. Must they refrain from doing anything but paying dues, or will signing the rou- tine union pledge still leave them with less than full membership? And finally, it is clear that what restrains the employee from going to work during a union strike is the union’s threat that it will fine him and collect the fine from him in court. How many employees in a union shop whose names appear on the union’s mem- bership rolls will be willing to ignore that threat in the hope that they will later be able to convince the Labor Board or the state court that they were not full mem- bers of the union?” ^̂
One can hope that, through the public- ity given to the Supreme Court’s recent Pattern Makers decision and through this and other informational devices, more and more employees will become aware of their individual rights. Then they can exercise their choices in an informed man-
ner. [The End]
2* In Boeing, the Supreme Court cited many examples where state courts determined the reasonableness or unrea- sonableness of fines. 412 US at 76, n.l2.
^’Allis-Chalmers, 388 US at 215-16 (Black, J., dissent- ing)-