Imagine you belong to a health club, alumni association, or fraternal organization. Imagine further that you decide to resign your membership because you no longer agree with the organization’s policies, or you simply want to keep your own money. Should you then be required to remain a member and keep paying dues unless you show up in person at the organization’s main office, which could be hours from your home, and show a photo ID to resign? Sounds preposterous, right? But not to some labor unions.
On May 8, 2018, the D.C. Circuit Court of Appeals addressed this very issue in Local 58, International Brotherhood of Electrical Workers v. NLRB and Ryan Greene, 888 F.3d 1313 (D.C. Cir. 2018), a case brought to the National Labor Relations Board by staff attorneys at the National Right to Work Legal Defense Foundation. The background is this:
In March 2013, Michigan became a Right to Work state, meaning employees cannot be required to join the union, remain a union member, or pay union dues or fees as a condition of employment. Twenty-eight states now have Right to Work laws, including the recent additions of Indiana, Wisconsin, West Virginia, and Missouri. Almost a year after Michigan passed the Right to Work law, IBEW Local 58’s chief official apparently decided that too many of his “members” might head for the exits once dues payments became truly voluntary. With that in mind, he unilaterally created a resignation/revocation policy in October 2013 that stated, in part:
IT IS HEREBY RESOLVED that any member that desires to opt out of membership or dues deduction must do so in person at the Union Hall of IBEW Local 58 and show picture identification with a corresponding written request specifically indicating the intent of the member.
Ryan Greene, a Michigan-based employee who was subject to this policy, filed an unfair labor practice charge with the National Labor Relations Board challenging the policy as facially illegal. The administrative law judge who heard the case upheld the union policy, finding it to be merely a “procedural rule” for how to resign and revoke rather than a restriction on the right to revoke as well as the right to resign at will under the U.S. Supreme Court’s decision in Pattern Makers’ League v. NLRB, 473 U.S. 95 (1985), and related cases.
On appeal, a panel of the National Labor Relations Board (Members Miscimarra and McFerran) found the policy facially illegal because it was burdensome and restrictive of the right to resign and the right to revoke a dues checkoff authorization. Local 58, IBEW (Paramount Industries, Inc.), 365 NLRB No. 30 (Feb. 10, 2017). Chairman Pearce dissented, likening the policy to a benign procedural rule. Id. at *5.
This time the union appealed, and a D.C. Circuit panel unanimously affirmed the NLRB’s decision striking down the policy. 888 F.3d 1313 (D.C. Cir. 2018). According to the D.C. Circuit, “the Board reasonably concluded that Local 58’s policy impermissibly restricts members’ rights to [resign and] revoke their dues-deduction authorizations.” Id. at 1319. That court of appeals decision is in full accord with several other federal cases holding it is burdensome and unlawful for a union to require employees to appear in person to resign memberships or revoke dues checkoffs. Newport News Shipbuilding & Dry Dock Co., 253 NLRB 721, 731–32 (1980), enf’d sub nom. Peninsula Shipbuilders’ Ass’n v. NLRB, 663 F.2d 488 (4th Cir. 1981) (holding “a requirement that employees appear in person at a union hall in order to revoke checkoff would impose, inherently, an unconscionable impediment to the free choice conferred by [LMRA] Section 302(c)(4)”); Felter v. Southern Pacific Co., 359 U.S. 326 (1959) (holding the “restrictive provisions of the Dues Deduction Authorization[, which required use of a union provided form to revoke that is forwarded by the union,] are violative of the” RLA provision similar to NLRA Section 302(c)(4), 29 U.S.C. § 186(c)(4))).
It remains to be seen whether IBEW Local 58 will file for certiorari over this D.C. Circuit decision. But, one thing is clear. As more states pass Right to Work laws and as public sector unions prepare for the day when they might lose their extraordinary power to compel nonmembers to pay any dues or fees (see Janus v. Am. Fed’n of State, Cty. & Mun. Emps., Council 31, 851 F.3d 746, 747 (7th Cir.), cert. granted sub nom. Janus v. Am. Fed’n, 138 S. Ct. 54 (2017), argued Feb. 26, 2018), unions and politicians continue to enact new and creative barriers to keep members and dues payors from fleeing.
For example, the Michigan Education Association/NEA negotiated a ten-year compulsory unionism clause to try (unsuccessfully) to lock in employees under the Michigan Right to Work law’s grandfather clause. See Taylor Sch. Dist. v. Rhatigan, 318 Mich. App. 617, 900 N.W.2d 699 (2016), appeal denied, 501 Mich. 893, 901 N.W.2d 623 (2017) (holding 10-year union security agreement unlawful). The same union also tried to enforce a policy (also unsuccessfully) that would have limited resignations only to the month of August. Saginaw Educ. Ass’n v. Eady-Miskiewicz, 319 Mich. App. 422, 902 N.W.2d 1 (2017), appeal denied, 908 N.W.2d 299 (Mich. 2018) (holding August window period violated employees’ right to refrain). Most recently, in the name of “workplace democracy,” both New York and New Jersey just passed laws to make it harder for employees to resign their union memberships and opt-out of paying dues.
These and similar schemes have one common goal: to lock employees into union membership and/or into making dues payments they no longer wish to make. Cases like these demonstrate that even when union membership and dues payment is voluntary, whether because of a state’s Right to Work legislation or a U.S. Supreme Court ruling, union officials regularly do whatever they can to block workers from exercising their protected legal rights. Instead of cooking up schemes to trap workers like Ryan Greene into paying union dues, union officials should ask themselves why they are so afraid of giving workers a free choice when it comes to union membership and dues payment.
Think of these traps and pitfalls the next time you try to resign from a health club, alumni association, or fraternal organization without an in-person appearance and a photo ID.