Cequent Towing Products

National Labor Relations Board - Administrative Judge Opinions

Aug 6, 2009

25-CB-008891 (N.L.R.B. Aug. 6, 2009)

JD(ATL)-18-09
Goshen, IN
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ATLANTA BRANCH OFFICE
DIVISION OF JUDGES
UNITED STEEL, PAPER AND FORESTRY,
RUBBER, MANUFACTURING, ENERGY, ALLIED
INDUSTRIAL AND SERVICE WORKERS
INTERNATIONAL UNION, AFL-CIO, CLC
(Trimas Corporation d/b/a Cequent Towing Products)
and Case 25-CB-8891
DOUGLAS RICHARDS, An Individual
UNITED STEEL, PAPER AND FORESTRY,
RUBBER, MANUFACTURING, ENERGY, ALLIED
INDUSTRIAL AND SERVICE WORKERS
INTERNATIONAL UNION, AFL-CIO, CLC
(Chemtura Corporation)
and Case 25-CB-9253
(formerly 6-CB-11544)
RONALD R. ECHEGARAY, An Individual
and Case 25-CB-9254
(formerly 6-CB-11545)
DAVID M. YOST, An Individual
Patricia H. McGruder, Esq. for the General Counsel.
John G. Adam, Esq. (Martens, Ice, Klass, Legghio &
Israel, P.C.), of Royal Oak, MI, for the Respondent.
William L. Messenger, Esq. (National Right to Work
Legal Defense Foundation), of Springfield, VA, for
Charging Party Douglas Richards.
Glenn M.Taubman, Esq. (National Right to Work Legal
Defense Foundation), of Springfield, VA, for Charging
Parties Ronald Echegaray and David Yost.
DECISION
Statement of the Case
JOHN H. WEST, Administrative Law Judge. This case was tried in Morgantown, West
Virginia, on May 19, 2009. Charges1 were filed and, as here pertinent, an amended

1 On June 10, 2005 the National Right to Work Legal Defense Foundation filed a charge on
behalf of Charging Party Douglas Richards in Case 25-CB-8891. On November 17, 2008 the
National Right to Work Legal Defense Foundation filed a charge on behalf of Charging Party
Ronald R. Echegaray in Case 6-CB-11544, which on February 2, 2009 was renumbered 25-
CB-9253. And on November 17, 2008 the National Right to Work Legal Defense Foundation
Continued
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consolidated complaint (complaint) was issued on May 8, 2009 alleging that United Steel, Paper
and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers
International Union, AFL-CIO, CLC (Respondent or Union) has been restraining and coercing
employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations
Act, as amended (Act), in violation of Section 8(b)(1)(A) of the Act in that (1) at all material times
Respondent has maintained a procedure governing the reduction in dues and fees for
nonmember employees covered by the Union Security Provisions who object to the payment of
dues and fees for nonrepresentational activities, (2) the Procedure requires that objecting
nonmember employees renew their objector status on an annual basis, and (3) collectively, on
specified dates Respondent applied the Procedure to Charging Parties Richards, Echegaray,
and Yost, notifying each of them that they must renew their objector status on an annual basis.
As set forth in the complaint General Counsel seeks an Order requiring Respondent to take the
following action with respect to all bargaining units represented by Respondent in which there is
a union security clause:
(1) rescind and cease giving effect to any rule that requires objecting nonmember
employees to renew their objector status on an annual basis; and (2) provide written
notification to all bargaining unit employees in those bargaining units that Respondent
has rescinded and cease giving effect to such rule.
Respondent denies that it has violated the Act in any way and Respondent objects to the
remedy sought by the General Counsel since it seeks relief as to "all bargaining units
represented by Respondent" not just the two units at issue in this case.2
In her opening at the trial herein, Counsel for General Counsel indicated as follows:
These cases raise the sole question of whether Respondent's requirement that
employees annually renew objections to payment of full union dues pursuant to Beck
[Communication Workers of America v. Beck, 487 U.S. 735 (1988)], notwithstanding
their continuing objection, violates the duty of fair representation …. because it [(a)]
places an unreasonable burden on objecting nonmembers without serving any legitimate
interest and [is] thus arbitrary …. [, (b)] unnecessarily and arbitrarily infringes on the right
of an employee to become and remain a Beck objector … [, and (c)] permits
[R]espondent to presume that employees will make a different value judgment than the
prior year regarding their [continuing] objection. (transcript pages 7, 8, and 9)
Counsel for General Counsel also indicated in her opening that the Board has not yet ruled on
the legality of an annual objection requirement; that the legal issue presented is novel; that
based upon factual considerations these cases may be dismissed; that the primary argument
against the finding of a violation is that an annual objection requirement satisfies the union's
_________________________
filed a charge on behalf of Charging Party David M. Yost in Case 6-CB-11545, which on
February 2, 2009 was renumbered 25-CB-9254.
2 The response is dated May 18, 2009. By letter dated March 18, 2009, Respondent's
attorney advised the Regional Director for Region 25 of the National Labor Relations Board
(Board) in part as follows:
In response to Mr. Taubman's March 17 [2009] letter to you and Chief Judge
Giannasi and to expedite the matter and avoid a 'traveling' hearing, USW has no objection if
the CGC [Counsel for General Counsel] and/or charging party want to offer just one or two
of the charging parties to present representative testimony. We are willing to discuss holding
the hearing at one location, if feasible. [General Counsel's Exhibit 1(p)]
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obligation under the duty of fair representation because it serves a legitimate purpose and
cannot be said to be arbitrary, discriminatory or in bad faith; that several courts have upheld
annual objection requirements on the premise that the status is not presumed and the burden of
objecting lies with the employee; that this gives nonmembers the opportunity to make a
conscious decision on an annual basis about whether to object; that an annual requirement may
allow a union to maintain a workable system for keeping track of its obligations to objectors; and
that "no violation may be established, if Respondent articulates a reasonable basis for [an]
annual renewal requirement that outweighs the burden placed on the charging parties to
annually renew objections." (transcript page 10)
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by General Counsel, Respondent, and the Charging Parties, I
make the following
Findings of Fact
I. Jurisdiction
Respondent admits that Trimas Corporation d/b/a Cequent Towing Products (Cequent),
a corporation, is engaged in the manufacture of towing products at its facility in Goshen,
Indiana, where during the 12 months before the complaint issued it purchased and received
goods valued in excess of $50,000 directly from points outside the State of Indiana. Respondent
admits and I find that Cequent is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. Respondent admits that Chemtura Corporation (Chemtura),
a corporation, is engaged in the manufacture of specialty liquid, solid and flaked chemicals at its
facility in Morgantown where during the 12 months before the complaint issued it purchased and
received goods valued in excess of $50,000 directly from points outside the State of West
Virginia. Respondent admits and I find that Chemtura is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act. Respondent admits and I find that the
Union is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
All of the parties, including General Counsel - who indicates that the relevant facts are
not in dispute, signed and entered into a stipulation regarding the majority of the background
information, General Counsel's Exhibit 2. As here pertinent, it reads as follows:
….
4. At all material times since about March 22, 2004, by virtue of Section 9(a) of the Act,
Respondent has been the exclusive collective-bargaining representative of the following
employees of Cequent … as set forth in Article 1 of the most recent collective bargaining
agreement between Respondent and Cequent. ….
5. At all material times since about May 16, 2006, by virtue of Section 9(a) of the Act,
Respondent has been the exclusive collective-bargaining representative of certain
employees of Chemtura … as set forth in Article 1 of the most recent collective
bargaining agreement between Respondent and Chemtura. ….
6. At all material times, by virtue of Section 9(a) of the Act, Respondent has been the
exclusive collective-bargaining representative of employees of various Employers
throughout the United States, herein called the Bargaining Units.
7. At all material times since about March 12, 2008, Respondent and Cequent have
maintained and enforced a collective-bargaining agreement … covering the Cequent
Unit and containing the following conditions of employment, herein called the Cequent
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Union Security Provision as set forth in Article 3 of the collective bargaining agreement
between Respondent and Cequent.
8. At all material times since about October 2, 2007, Respondent and Chemtura have
maintained and enforced a collective-bargaining agreement … covering the Chemtura
Unit and containing the following conditions of employment, herein called the Cequent
Union Security Provision as set forth in Article 2 of the collective bargaining agreement
between Respondent and Chemtura.
9. At all material times, Respondent and various Employers throughout the United States
have maintained and enforced a collective-bargaining agreements covering Bargaining
Units and containing as a condition of employment union security provisions that
obligate bargaining unit employees to maintain membership in the Union as in the
Chemtura Union Security Provision and the Cequent Union Security Provision
(hereinafter referred to as the Union Security Provisions).
10. On or about August 26, 2008, Ronald R. Echegaray notified Respondent [by letter3]
that he objected to the payment of dues and fees for nonrepresentational activities. ….
11. On or about June 11, 2008, David M. Yost notified Respondent [by letter4] that he
objected to the payment of dues and fees for nonrepresentational activities. ….
12. On or about November 7, 2008, Douglas Richards notified Respondent [by letter5]
that he objected to the payment of dues and fees for nonrepresentational activities. ….
13. Respondent admits receipt of said notifications by Echegaray, Yost, and Richards as
set forth in clauses 10 - 12 of this Stipulation.
14. At all material times, Respondent has maintained a procedure governing the
reduction in dues and fees for nonmember employees who object to the payment of
dues and fees for nonrepresentational activities, herein called the Procedure. The
Procedure, which speaks for itself, requires that objecting nonmember employees renew
their objector status on an annual basis. The Procedure is applied to nonmember
employees covered by the Union Security Provisions in the Bargaining Units. ….
15. On or about June 26, 2008, Respondent [by letter] applied the Procedure to Yost
and notified him that he must renew his objector status on an annual basis. …. Yost
admits receipt of the letter along with the Procedure ….
16. On or about September 9, 2008, Respondent [by letter] applied the Procedure to
Echegaray and notified him that he must renew his objector status on an annual basis.

3 The letter contains the following:
Finally, please consider this objection to be permanent and continuing in nature. I
stated this is my original objection letter but you still notified me that I had to file an
annual objection. The annual objection requirement places an unnecessary burden upon
me and is unlawful. Please notify me immediately whether you accept my objection as a
permanent and continuing objection or whether you will require me to file an annual
objection letter. [Attachment C to General Counsel's Exhibit 2]
4 The letter reads in part as follows:
Originally, I told you to consider this objection to be permanent and continuing in
nature. …. If I am required to notify the Union annually, please state so specifically as I
intend to file an unfair labor practice to address this issue if necessary. This issue has
been resolved in Florida and I have been offered assistance by National Right to Work
Committee to fight this for the West Virginia workers that are being held hostage to this
unfair practice. I did not need or want to be a part of your Union - but you won that fight -
for now. We will see if we will remain union on the third anniversary of the contract.
[Attachment D to General Counsel's Exhibit 2]
5 The letter reads in part as follows: "Finally, please consider this objection to be permanent
and continuing in nature." [Attachment E to General Counsel's Exhibit 2]
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…. Echegaray admits receipt of the letter along with the Procedure ….
17. On or about January 26, 2009, Respondent [by letter] applied the Procedure to
Richards and notified him that he must renew his objector status on an annual basis. ….
Richards admits receipt of the letter along with the Procedure …, the Twenty-Fifth
Report of the International Secretary-Treasurer …, the 2006 Independent Auditors'
Report …, [the] Twenty-Sixth Report of the International Secretary-Treasurer …, the
2007 Independent Auditors' Report …, and the Notice to All Employees Covered by a
Union Security Clause ….
18. On or about August 27, 2008 and November 24, 2008, Respondent sent letters
along with checks to Yost. …. These checks were issued pursuant to Respondent's
administration of the Procedure. Yost admits receipt of these letters and checks.
19. On or about February 23, 2009 and April 28, 2009, Respondent sent letters along
with checks to Richards. …. These checks were issued pursuant to Respondent's
administration of the Procedure. Richards admits receipt of these letters and checks.
20. On or about September 15, 2008 and November 24, 2008, Respondent sent letters
along with checks to Echegaray. …. These checks were issued pursuant to
Respondent's administration of the Procedure. Echegaray admits receipt of these letters
and checks.
21. In late February 2009, Respondent sent Yost a letter dated February 20, 2009,
related to the Procedure. …. Attached to the letter was Respondent's Nonmember
Objection Procedure, …. the Twenty-Sixth Report of the International Secretary-
Treasurer …, the 2007 Independent Auditors' Report …, and the Notice to All
Employees Covered by a Union Security Clause ….
22. In late February 2009, Respondent sent Echegaray a letter dated February 20, 2009,
related to the Procedure. …. Attached to the letter was Respondent's Nonmember
Objection Procedure, …. the Twenty-Sixth Report of the International Secretary-
Treasurer …, the 2007 Independent Auditors' Report …, and the Notice to All
Employees Covered by a Union Security Clause ….
The Charging Parties and the Respondent entered into a stipulation regarding the
testimony of Richards. Counsel for General Counsel indicated that she did not object. As here
pertinent, the stipulation, Charging Parties' Exhibit 1, reads as follows:
[P]arties hereby stipulate that if called to testify at trial, Douglas Richards would testify
that:
1) I am an employee of Trimas Corp. d/b/a Cequent Towing Products. I am the Charging
Party in NLRB Case No. 25-CB-8891.
2) I am employed within a bargaining unit represented by … [Respondent] (hereinafter
"USW").
3) I am not a member of the USW.
4) On or around November 7, 2008, I sent a letter to the USW stating my objections to
paying dues and fees for nonrepresentational purposes. The letter states that my
objection is permanent and continuing in nature. A true and correct copy of the letter I
sent is attached to the General Counsel's Stipulation as Attachment E.
5) In a letter dated January 26, 2009, the USW notified me that, pursuant to its Agency
Fee Objection Procedure, I must renew my objector status on an annual basis during a
specified thirty-day window period. It is my understanding that, if I do not renew my
objection, the USW will revoke my objector status and I will have to pay full union dues
for at least one year until the next window period. A true and correct copy of the letter I
received from the USW is attached to the General Counsel's Stipulation as Attachment I.
I received a copy of the USW's Agency Fee Objection Procedure along with the USW
letter dated January 26, 2009. A true and correct copy of the Agency Fee Objection
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Procedure is attached to the General Counsel's Stipulation as Attachment F.
6) I have never signed any document or waiver that provides that USW with authority to
control if, when, or for how long I shall object to paying dues and fees for
nonrepresentational purposes.
7) I believe that it is burdensome for me to have to annually renew my objection, to keep
track of the renewal dates,[6] and thereafter mail an annual renewal of my objection. I
believe that it is unfair that I and others have to pay full union dues for one year if the
renewal period is missed. I believe that the USW's annual objection policy lacks a
legitimate justification.
Conclusion: All parties stipulate that, if called to testify at trial, Douglas Richards
would testify to these facts and opinions. All parties expressly waive all further ability to
examine or cross-examine Douglas Richards, and all parties ask that the Administrative
Law Judge accept this stipulation in lieu of Douglas Richards' live testimony.
The Richards stipulation is signed by the attorneys for the Charging Parties and the
Respondent.
Echegaray testified that he has worked for Chemtura in Morgantown for 15 years; that
Respondent has had a collective bargaining agreement to represent the bargaining unit
employees for about one and a half years; that he did not become a member of the Union; that
he does not agree with the Respondent's support of Barak Obama and the Employee Free
Choice Act; that he used to receive the Respondent's magazine; that in his original objection
letter to the Union he indicated that his objection should be considered permanent and
continuing in nature because he did not believe that his opinion is ever going to change but if it
did, he was sure that the Union would be happy to accept his phone call at any time; and that he
considers it a burden to annually renew his objection because
It is in such that I have three daughters, a wife. My daughter is involved in
several things. I am involved in several things.
My anniversary date, I must admit, I think of it on my fifth year anniversary, on my
10th year I thought of it, on my 15th year anniversary I thought of it, because we are
allowed to choose a trinket out of a magazine celebrating our milestone anniversary.
It is an arbitrary date to me.
In everyone's busy lives, it is one more thing that I have to - - it puts a burden on
me. [transcript pages 25 and 26]
Echegaray further testified that he has never signed any documents waiving or changing his
permanent objection.
On cross-examination Echegaray testified that he openly opposed the Respondent's
union organizing drive from the beginning; that he served as the Employer's observer at the
Board election; that he has never participated in any union matter even prior to the
Respondent's organizing drive; that since he filed his objection letter he has received advanced
reduction of dues payments every 3 months from the Respondent; that after he became an
objector, he received a letter from the Respondent advising him that he had to renew his
objection annually; that he is aware that under the collective bargaining agreement seniority

6 The 30-day renewal period is linked to just one date, namely the employee's hire date.
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governs for layoffs, recall, vacation, filling vacancies, forced overtime, and temporary shifts; that
he knows what his date of hire is; that he understands that the annual objection letter simply has
to state "I want to continue to object"; that while he does not believe that he is required to send
the objection letter certified, he takes this approach to insure that the letter is received; that he
sent his initial objection letter to the wrong location but eventually it was tracked down and his
objector status was recognized; that he uses the mail to send personal letters, the payment of
bills, and Christmas cards; that since he became a nonmember objector he was laid off for three
and one half months and he continued to receive the advance reduction check from
Respondent; that he assumed that the Union did not know that he was laid off; that he did not
advise the Union that he was out for three and one half months; and that this was taken into
account in future reductions.
On redirect Echegaray testified that he has never received notice from the Respondent
right before his renewal period reminding him that it was time to object; and that the notice
comes with the packet the Respondent sends after he objects.
Yost testified that he has worked for Chemtura for 19 years in Morgantown; and that he
does not support the Respondent because
[t]he union's political activities are in conflict with - - they support and their web site
shows that they are very - - they support liberal, far left agenda, very pro labor, which
also happens to be antigun.
I am very pro NRA.
To me, it is a very clear conflict of interest with what the union stands for with my
own views. [transcript page 38]
Yost further testified that the only mailings he gets from the Union are the annual dues
calculation notice and rebate checks; that he has never received a notice from the Union
reminding him that the time to object is approaching; that in his original objection letter he
indicated that his objection should be considered to be permanent and continuing because he
does not believe that his political views are going to change; and that he considers it to be a
burden to annually renew his objection every year in that
I am the father of seven children.
I currently carry a full-time college load.
Raising kids like that and providing foster care, which is an increased burden over
raising natural born children, given the extra emotional burdens that these children carry,
my anniversary date is an arbitrary date.
It means nothing.
I mean, I currently have nine other anniversaries and birthdays and things like that to
remember, that are important. [transcript page 40]
And Yost further testified that he has never signed any document or waiver that provides the
Union with authority to control, if, when or for low long he can object to paying dues and fees for
nonrepresentational purposes; that he has never signed any documents waiving or changing his
continuing and permanent objection; and that he has never given the Union permission to
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change his status.
On cross-examination Yost testified that he was hired on June 25, 1989; that he
understands that under the collective-bargaining agreement seniority plays an important role;
that he did not participate in Respondent's organizing drive and he was against unionization
from the beginning; that he never became a member of the Union and since the Union was
certified by the Board he has not participated in any union activity; that he receives advance
reduction money from the Union and has no complaint about that; that he does have a
complaint about renewing his objection within 30 days of his date of hire, his anniversary date;
that he does not use the mail at all to pay bills since he pays electronically by computer; that he
has renewed his objection and he received a letter from the Union indicating "We have
acknowledged your perfection of the objection" (transcript page 47); that he has received
several letters from the Union related to the procedure, namely (1) a notice of the new
chargeable versus nonchargeable expenditures at the end of January, (2) another copy of the
notice of procedure of how to object, and (3) an audited report showing how much more or less
is being spent on political activity; that he reviewed the audited report thoroughly, he decided he
wanted to maintain his objection, and he sent his letter to the Union; that he does not want to
send a letter in to maintain his objection status, "[i]t is very burdensome" (transcript page 48), it
is too expensive, and it requires a trip to the post office; and that he makes $29.12 an hour and
sometimes works overtime.
On redirect Yost testified that he renewed his objection because the Union holds no
credibility with him; that he felt that it is an absolute necessity to send the renewal objection
letter by certified mail, return receipt requested to have absolute proof that they received that
letter; and that he does not want to have a continuing relationship with the Union in any form.
David Jury, who is an associate General Counsel in Respondent's legal department,
testified that as part of his job duties he has had the responsibility for administering the
nonmember objection procedure; that attachments to the above described stipulation are letters
from him to the different Charging Parties; that Respondent's international constitution provides
that the international secretary treasurer is to establish a nonmember objection procedure,
which was done years ago, and the international secretary treasurer has delegated the work
related to the nonmember objection procedure to the legal department because of the legal
issues involved; that he responds to letters from employees relating to perfecting objections,
renewing objections, and simply making inquiries relative to the nonmember objection
procedure; that he responded to the Charging Parties' objections, and he sent them letters
about advance reductions; that the Union's nonmember objection procedure has an element of
advanced reductions since most employers continue to withhold from nonmember objectors the
full union security amount per the checkoff authorization that the objectors sign, and in order to
accommodate that, the union provides advanced reduction payments on a quarterly basis to
each of the objectors who are having the full amount withheld from their dues; that the Union
makes estimates about what the objector may pay in the upcoming quarter and sends the
objector a letter explaining the basis of the Union's calculation and encloses a check as an
advanced reduction; that the Union subsequently determines whether its estimates of the dues
withheld were correct and, if necessary, adjusts accordingly quarter by quarter, generally; that
annually the international Union prepares a new report of its chargeable and nonchargeable
expenditures based upon its actual expenditures in a prior year; that he works with
Respondent's auditing and finance department, and with Respondent's outside auditors who
review Respondent's calculations and produce a certified report; that someone who is already
an objector receives an annual notice in the form of (a) the report of the international secretary
treasurer, (b) excerpts from the Union's financial audit, (c) a copy of the outside auditor's report
affirming the Union's calculation of chargeable and nonchargeable expenditures, (d) a one-page
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notice that would be published in the upcoming edition of the Union's newspaper or magazine
(i.e., Charging Parties' Exhibit 2), and (e) a copy of the Union's nonmember objection
procedure; that this is generally done in the beginning of each year; that the Union typically
completes its calculation of chargeable and nonchargeable expenditures in December and it
sends this data, along with the other information he described above, to the nonmember
objectors in the first quarter of the following year; and that the Union requires annual renewal for
the following reasons:
The steelworkers union has had an annual renewal requirement in its
nonmember objection procedure for a number of years.
We believe there are a number of reasons that support the continuation of an
annual renewal requirement.
First, because we provide objectors annually with revised data, revised
calculation as to the Union's chargeable and nonchargeable expenditures, we believe
that it is reasonable to ask the objector to advise whether or not he or she wishes to
continue objecting for the following year.
Because the data changes each year. The union's expenditures change.
And we believe it is appropriate to ask an objector to bear that in mind.
Second, we maintain it, because we believe it is lawful.
We believe that several federal district courts in construing the National Labor
Relations Act have concluded that annual renewal requirements are lawful, because as
we understand the reasoning of those courts, including the D.C. circuit in Abrams v.
Communication Workers continuing to … [dissent (See transcript page 67, line 14)] is
not to be presumed.
So we operate with our understanding of those cases as well as our
understanding of the position of the NLRB General Counsel circa 1988, MGC
memorandum 8814, which suggested an annual renewal requirement is lawful.
We have acted in reliance upon that memo, as well as existing authority.
Further, we believe that an annual renewal requirement is appropriate in light of
the rights that a nonmember objector gives up.
A nonmember objector is by definition someone who is not a member of the
union.
And a member - - a person who is not a member of the union, and we have
informed objectors [of] this in their letters, when they perfect [their objector status].
A person who is not a member of the union has no right to attend local union
meetings, to vote on collective bargaining agreements, when new collective bargaining
agreements are presented for ratification.
A nonmember has no right to vote in local union or international union elections.
And indeed, a nonmember has no right to run for union office or to seek to be a [union]
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delegate ….
We think these are significant rights that a nonmember knowingly gives up.
And we believe that in light of those rights and in light of changes that could
occur in the work place, that it is reasonable for us to ask a nonmember to renew.
Finally, we believe that annual renewal requirement is of some assistance to us
in our administration of the nonmember objection procedure.
As I testified, the union pays advance quarterly reduction payments to objectors.
And Charging Party Echegaray testified he has been laid off for parts of this year.
Having annual renewal requirements allows the union and some assistance to
the union in administering our program to make certain that when we send advance
reduction payments to objectors, that they are still actually in the work force and have
not either retired, resigned, been laid off or out of work on some long-term basis, thus no
longer have union security fees withheld from them.
So I think for all of these reasons, these are the reasons we continue to maintain
our annual renewal obligation. [transcript pages 57 - 60]
On cross-examination Jury testified that the Union does not make members annually
renew their membership since it does not believe that there is an obligation to require them to
annually renew; that a member can resign his membership at any time; that the Union does not
make employees who sign a dues checkoff card annually renew the dues checkoff card; that the
dues checkoff card is written so that it automatically and continuously renews every year
inasmuch as section 302(c)(4) of Taft Hartley allows for that, the Union's card is consistent with
what Congress in the 1940s permitted; that the Union represents approximately 800,000 or
850,000 in the United States, Canada, and the Virgin Islands; that there are presently about a
total of 300 nonmember Beck objectors; that the timing of the Union's financial package to
nonmember objectors is not linked to when any individual was hired or when their renewal date
would be; that some employers don't withhold full dues and withhold only the reduced amount;
that with employers who withhold only the reduced amount, there is a burden on the Union of
policing to make sure that the employers are actually following through on their undertakings
and correctly withholding dues at a reduced amount perhaps for one or two persons in a
bargaining unit where the rest of the bargaining unit is having dues withheld at the full
constitutional amount; that he believed that the United States Supreme Court indicated that
dissent is not to be presumed; that notwithstanding what the Charging Parties objections letters
state, the Union maintains a policy, beginning with the view that dissent is not to be presumed,
which has an annual renewal requirement; that the objection letters of the Charging Parties
appear to state their then current views but he had no way of knowing what their views would be
in the future; that the annual renewal policy was promulgated in 1979 in response to then recent
case authority in the public and then private sector which held that unions should adopt policies
to address the interests of nonmember objectors covered by union security clauses; that he did
not know what the actual motives where in 1979 when the nonmember objection procedure was
first adopted; that technically if an objecting nonmember misses the window period, he remains
a nonmember but has to pay full union dues, but as a practical matter when an employee
belatedly renews his or her objection the Union has tended to renew that objection status
prospectively from the renewal; that a nonmember nonobjector cannot participate in internal
union affairs such as voting on the contract or voting in union elections; that one's membership
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status and one's objection status are two separate obligations but in order to become an
objector, one must by definition resign his or her membership or never have become a member
in the first place; that it is possible for someone to opt not to be a member but not opt for
objector status for reasons known but to them; that to participate in internal union affairs the
nonmember objector would have to reconsider and change both his objector and membership
status; that with respect to the Union receiving information from employers as to who is actually
still employed and not employed in the Union's various bargaining units, the Union represents
8,000 or more bargaining units in the United States and Canada and he could not speak to the
information that is furnished in all 8,000 of those bargaining relationships; and that, with respect
to the question of Charging Party Richard's attorney, whether the Union could "just require a
nonmember send a letter each year, if they happen to retire or move on or not be employed"
(transcript page 75) while that is possible, he did not know how persons like Charging Parties
would view that as an impediment or burden.
Contentions
On brief Counsel for General Counsel submits that while the Board has not ruled on the
legality of an annual objection requirement, Federal courts have considered this issue and have
split in their outcome; that the annual objection requirement has been upheld by the D.C.
Circuit7 and the Sixth Circuit8 United States Courts of Appeals but it was not upheld by the
Second Circuit9 and the Fifth Circuit10 United States Courts of Appeals; that the Second and
Fifth Circuits in finding the annual objection requirement unlawful were constrained to apply the
strict principles of the First Amendment to the United States Constitutional rather than the duty
of fair representation standard; that although the Fifth Circuit, in the alternative, did apply the
duty of fair representation standard, the Fifth Circuit continued to infuse First Amendment
principles into its analysis of the Unions' duty of fair representation; that a union's obligations
under Beck flow from a duty of fair representation, under which unions are allowed a "wide
range of reasonableness" in serving the employees they represent11; that unions must not act
arbitrarily, discriminatorily, or in bad faith toward unit employees12; that the issue here is
whether Respondent's requirement that Beck objectors annually renew their objections is
arbitrarily, discriminatorily, or in bad faith; that until 2003 the General Counsel had never taken
the position that an annual renewal requirement for nonmember Beck objectors violated the Act;
that Counsel for General Counsel's primary argument in support of finding a violation is that the
annual objection requirement violates the Union's duty of fair representation because it places
an unreasonable burden on objecting nonmembers without serving any legitimate interest, and
thus is arbitrary; that none of the aforementioned Federal court cases which did not uphold the
annual objection requirement arose under the Act; that under a duty of fair representation
analysis, the annual objection is arbitrary because it places an unreasonable burden on

7 Abrams v. Communication Workers of America, 59 F.3d 1373, 1381 - 1382 (D.C. Cir.
1995).
8 Tierney v. City of Toledo, 824 F. 2d 1497, 1506 (6th Cir. 1987). The annual objection
requirement was also upheld in Kidwell v. Transportation Communications Intl. Union, 731 F.
Supp. 192, 205 (D. Md. 1990), affd. in part, revd. on other grounds 946 F. 2d 283 (4th Cir.
1991), cert. denied 112 S. Ct. 1760 (1992)
9 Seidemann v. Bowen, 499 F.3d 119 (2d Cir. 2007).
10 Shea v. IAM, 154 F.3d 508, 515 (5th Cir. 1998). A Virginia Federal District court also ruled
against the annual objection requirement in Lutz v. IAM, 121 F. Supp. 2d 498, 506 - 507 (E.D.
Va. 2000).
11 Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953).
12 Vaca v. Sipes, 386 U.S. 171, 177, 190 (1967).
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employees who have chosen to object, and it serves no legitimate purpose; that absent a proper
and persuasive justification the annual objections requirement is arbitrary; that contrary to those
cases which found that the unions involved therein did not provide a sound reason for an annual
objection requirement, here Respondent provides several reasons for utilizing the annual
renewal requirement; that the courts in Tierney, supra, and Abrams, supra, relied on the annual
reporting obligations imposed on unions to justify an annual renewal requirement; that the Board
has stated that unions are not required to provide nonmembers with annual notice of their Beck
rights13; and that
Applying the above considerations to the instant case, no violation should be
found, as Respondent has articulated a reasonable basis for its annual renewal
requirement, and whatever slight burden [is] suffered by Richards, Echegaray, and Yost
in having to annually renew their objection is outweighed by the [Respondent's]
justifications …. [Counsel for General Counsel's brief, page 21]
The Charging Parties on brief argue that the Union's annual renewal is unlawful because
(a) the Union lacks the substantive authority to transform a Beck objector into a non-objector
against his will, and (b) it is procedurally arbitrary, discriminatory and in bad faith; that the
Union's justifications for its policy are spurious, and the majority of courts and administrative law
judges who have considered this issue have struck down annual renewal policies for these
reasons14; that the Union's annual renewal policy is procedurally arbitrary and constitutes a
breach of the duty of fair representation; that a union's conduct is arbitrary if it is so far outside a
wide range of reasonableness as to be irrational; that the Union's annual renewal policy is
procedurally discriminatory and constitutes a breach of the duty of fair representation; that the
Union does not make union members annually renew their membership or their dues deduction
authorization; that the Union's annual renewal policy is in bad faith and constitutes a breach of
the duty of fair representation; that the Union is burdening the Charging Parties' exercise of their
§ 7 rights for the sole purpose of dissuading them from exercising these very rights and options;
that the Union's justifications for its annual renewal policy are spurious since (a) the fact that
each year the Union sends the objectors information regarding chargeable and nonchargeable
expenditures, the objector notification procedure, etc., does not justify requiring that the objector
write back to the Union indicating whether he or she renews their objection because the Union's
legal obligation to provide annual notices does not logically justify imposing a burden on
employees, (b) the it is lawful because it is lawful justification (1) relies on a minority of court
decisions which upheld the annual renewal with little analysis or factual record, and a 20-year
old General Counsel Memorandum, G.C. Memorandum 88-14 which is not Board law or binding
on the Board, and (2) must be viewed in light of the fact that there is no Board precedent on
which the Union could legitimately rely, and even if there were Board law on the subject, that is
not justification in and of itself because the Board is free to overrule its own precedent and
reevaluate its decisions as industrial conditions change, (c) with respect to the Union's tracking
the employee's status justification, the Union has other ways to find out whether employees
have retired, resigned, or been laid off without the objector's annual renewal requirement in that

13 Steelworkers Local 4800 (George E. Failing Co.), 329 NLRB 145, 146 (1999);
Paperworkers Local 1033 (Weyerhauser Paper Co.), 320 NLRB 349, 350 (1995).
14 The Charging Parties cite Shea v. Machinists, 154 F. 3d 508 (5th Cir. 1998); Lutz v.
Machinists, 121 F. Supp. 2d 498 (E.D. Va. 2000); Seidemann v. Bowen, 499 F. 3d 119 (2d Cir.
2007); Teamsters Local 952 (Albertsons, Inc.), 2006 WL 1525828, Case No. 21-CB-13609,
JD(SF)-30-06 (May 30, 2006; L-3 Communications Vertex Aerospace, Case No. 15-CB 5169,
JD(ATL)-02-08 (Jan. 9, 2008); and UAW (Colt's Manufacturing Co.), Case No. 34-CB-2631,
JD(NY)-06-08 (March 3, 2008)
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(1) there would be a cessation of dues payments from a nonmember who may no longer be
employed in the involved unit, (2) the Union can ask the Employer for the names of the newly
retired, resigned, or laid off nonmembers, and (3) the Union "could simply send a letter to the
small number of objectors (estimated to be 300 by the union's witness, TR 64) asking them to
verify their status as active workers instead of being 'retired, resigned, or laid off,'" (Charging
Parties' brief, pages 23 and 24),15 and (d) the fact that the Union is not required to but it has
chosen to use a needlessly complex quarterly refund procedure does not justify requiring
objectors to annually renew their objector status; and that the remedy in these cases must be a
nationwide expungement, notification, and a reimbursement for any employee who, within the
§ 10(b) period has had his status flipped from objector to non-objector as a result of his silence.
The Respondent on brief contends that a union breaches the duty of fair representation
when its conduct toward a member of the bargaining unit is arbitrary, discriminatory, or in bad
faith; that "[a] union's conduct can be classified as arbitrary only when it is irrational, when it is
without a rational basis or explanation," Marquez v. Screen Actors Guild,Inc. 525 U.S. 33, 44, 45
- 46 (1988); that just after the 1988 Beck decision was issued, the General Counsel announced
its position in November 1988, stating that "a union can require nonmembers to file new
objections … each year," GC Memorandum 88-14, p. 3 (November 15, 1988); that in California
Saw & Knife Works, the Board indicated that the "requirement that Beck objectors be registered
annually is not alleged to be unlawful by the General Counsel, [and] [w]e note that courts have
approved the annual objection requirement in the NLRA, RLA, and public sector context"16; that
the legal analysis in ascertaining a duty of fair representation breach is different from an
analysis of a violation of a Section 7 right in that the former, as noted above, affords a union a
wide range of reasonableness, Marquez and Vaca v. Sipes, 386 U.S. 171, 177 (1967); that by
framing the complaint as a duty of fair representation breach, General Counsel concedes that
the Section 7 right to become and remain a Beck objector is qualitatively different from the
Section 7 right to resign from membership; that the right to resign membership is an unfettered
right, while the right to be a Beck objector may be limited so long as the restrictions are not
arbitrary, discriminatory or imposed in bad faith; that Federal courts have ruled that the annual
renewal requirement does not breach the duty of fair representation; and that the Sixth Circuit in
Tierney at 1506 stated as follows:
Since Hudson [Chicago Teachers Union Local No. 1, AFT, AFL-CIO v. Hudson, 475
U.S. 292 (1986)] places the burden of objection upon the employees (as contrasted to
burden of proof), we do not consider unreasonable the plan's provision that each
member be required to object each year so long as the union continues to disclose what
it must before objections are required to be made.
Respondent further contends that the court in Abrams at 1381 and 1382 citing Tierney and
International Association of Machinists v. Street, 367 U.S. 740, 774 (1961) stated that "[t]he
annual renewal requirement is permissible in light of the Supreme Court's instruction that

15 This argument appears to mean that Charging Parties' attorneys do not view the physical
writing of a letter or the physical filling out of a form by the Charging Parties and mailing it to the
Union to be a burden since this is what they are recommending as an alternative. That being the
case, apparently the Charging Parties' attorneys are arguing that the burden on the Charging
Parties is limited to keeping track of their hire date and a 30-day period which is linked to the
hire date anniversary.
16 320 NLRB 224, 236 n. 62, enfd. sub nom. Machinists v. NLRB, 133 F. 3d 1012 (7th Cir.
1998), cert. denied sub nom. Strang v. NLRB, 525 U.S. 813 (1998). The Board cited Abrams,
Kidwell, and Tierney, supra.
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'dissent is not to be presumed - it must affirmatively be made known to the union by the
dissenting employee"; that the court at 1382 in Abrams, citing Tierney, stated that "we do not
consider unreasonable the provision that each member be required to object each year so long
as the union continues to disclose what it must before objections are required to be made"17;
that other Federal courts have found the annual requirement unlawful in non-duty of fair
representation cases and in different legal contexts; that Shea v. IAM, 154 F.3 508 (5th Cir.
1998), Seidemann, and Lutz v. IAM, 121 F. Supp. 2d 498, 506 (E.D. Vir. 2000) rest on scrutiny
under the First Amendment which is significantly more rigorous and less differential than a duty
of fair representation review; that because the First Amendment does not apply to agency fee
objection procedures under the NLRA, White v. Communication Worker, Local 13000, 370 F. 3d
346 (3d Cir. 2004), the Board has rejected the proposition "that precedent under public sector
labor law and the RLA grounded in constitutional considerations are binding in the context of the
NLRA," California Saw at 227; that consequently federal judicial precedent supports
Respondent's procedure; that Respondent cannot be accused of bad faith for following an
annual objection procedure that had been expressly approved by the Office of the General
Counsel and the courts, I.U.E. v. NLRB, 41 F.3d 1532, 1538 (D.C. Cir. 1994); that despite the
protestations of the Charging Parties, the burden of sending one letter annually, at a date that
has been clearly identified, is minimal, if not inconsequential; that California Saw sanctions 30-
day window periods in the regulation of the filing of employee Beck objections; that the "gotcha"
argument lacks merit in that objectors are clearly advised of the date for renewing an objection,
they are given ample time to renew their objections, and as Jury testified in practice when an
employee belatedly renews his or her objection the Union has tended to renew that objection
status prospectively from the renewal; that Respondent's procedure cannot be found arbitrary
when Respondent follows the guidelines established in GC Memorandum 88-14 which
prescribed an annual objection procedure - a procedure whereby the Union annually
recalculates the amount charged to objectors, annually provides objectors with notice of the
objection right, and, as an integral component of this annual objection procedure, "require[s]
nonmembers to file new objections … each year," GC Memorandum 88 - 14, p.3; that the Board
cannot fault the Respondent for using a procedure that was upheld long before the General
Counsel changed its position, Marquez v. Screen Actors Guild, 525 U.S. 33, 46 (1998); that a
union's reliance on prior decisions or other precedent cannot be viewed as arbitrary conduct, at
least not until the Board has ruled on the issue; that because Respondent gives an annual Beck
notice to existing objectors, along with information such as audits and reports, it is not
unreasonable to require the objector to mail in a letter once a year; that by providing for an
annual objection, the Respondent's procedure gives it reasonable assurance that only
employees who are moved by an objection to providing financial support to activities not
germane to collective bargaining will be entitled to pay a reduced agency fee; that since the
Respondent's expenditures change each year, it is appropriate to ask an objector to bear that in
mind; that the renewal requirement provides some assurance to the Respondent to be certain
that it is not paying amounts to persons who are no longer employed within covered bargaining
units, whether such persons leave employment due to a plant closure, layoff, retirement, or
resignation; that it is not irrational for the Respondent to seek to avoid making advanced
reduction payments to persons who no longer are subject to union security fee withholding; that
the Respondent's annual renewal requirement is lawful since it serves legitimate purposes; and
that the Respondent's policies regarding checkoff authorization/membership versus nonmember

17 Respondent cites Price v. UAW, 722 F. Supp. 933, 938, 940 (D. Conn. 1989), affd. 927 F.
2d 88 (2d Cir.), cert. denied, 502 U.S. 905 (1991) where the court upheld an annual renewal
requirement noting that "[t]he Union's new objection procedures, … closely track guidelines
established in a recent internal NLRB memorandum (Memorandum GC 88-14, Guidelines
Concerning CWA v. Beck, NLRB Office of the General Counsel, Nov. 15, 1988)."
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objections are not inconsistent but based on differences in the law and how these matters are
regulated.
Analysis
The issue presented here is whether the Union breached its duty of fair representation
and thereby violated the Act?
In 1944 the duty of fair representation originated with Steele v. Louisville & Nashville
Railroad, 323 U.S. 192 (1944) under the Railway Labor Act (RLA).
In 1953 the United States Supreme Court, in ruling on the duty of fair representation for
the first time under the National Labor Relations Act (NLRA or Act), indicated:
[T]he authority of bargaining representatives … is not absolute as recognized in Steele
…. Their statutory obligation to represent all members of an appropriate unit requires
them to make an honest effort to serve the interests of all of those members without
hostility to any. [Ford Motor Co. v. Huffman, 345 U.S. 330, 337 (1953)]
In 1961 the United States Supreme Court in International Association of Machinists v.
S.B. Street, 367 U.S. 740 (1961) held that that section of the RLA authorizing a union shop
denies a union, over an employee's objection, the power to use his exacted funds to support
political causes which he opposes. At 774 the Court indicated that "dissent is not to be
presumed - it must affirmatively be made known to the union by the dissenting employee."
In 1962 the Board, in Miranda Fuel Co., 140 NLRB 181 (1962) first recognized that a
breach of the duty of fair representation was an unfair labor practice, as here pertinent, under
Section 8(b)(1)(A) of the Act.18
In 1967 the United States Supreme Court in Vaca v. Sipes, 386 U.S. 171, 177 (1967)
ruled that:
[T]he exclusive agent's statutory authority to represent all members of a designated unit
includes a statutory obligation to serve the interests of all members without hostility or
discrimination toward any, to exercise its discretion with complete good faith and
honesty, and to avoid arbitrary conduct ….
In 1986 the United States Supreme Court in Chicago Teachers Union Local No. 1, AFT,
AFL-CIO v. Hudson, 475 U.S. 292, 306 (1986) indicated:
In Abood, we reiterated that the nonunion employee has the burden of raising an
objection, but that the union retains the burden of proof: " 'Since the unions possess the
facts and records from which the proportion of political to total union expenditures can
reasonably be calculated, basic considerations of fairness compel that they, not the
individual employees, bear the burden of proving such proportion.' " Abood [v. Detroit

18 The United States Second Circuit Court of Appeals reversed the Board at 326 F. 2d 172
(2d Cir. 1963), without ruling on whether the Board was correct in finding that a breach of the
duty of fair representation was a violation of the Act. Over 20 years later, the Second Circuit in
NLRB v. Teamsters Local 282, 740 F. 2d 141 (2d Cir. 1984) found that a union's breach of the
duty of fair representation violates Section 8(b)(1)(A) of the Act.
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Bd. of Edu.], 431 U.S. at 239 - 240, n. 40, … [unofficial citation and citation of the original
source of the quoted language omitted] (1963).16
_________________
16. The nonmember's "burden" is simply the obligation to make his objection known.
See Machinists v. Street, 367 U.S. [740] at 774 (1961) … ("[D]issent is not to be
presumed - it must affirmatively be made known to the union by the dissenting
employee") …. [unofficial and additional citation omitted]
In 1987 the United States Sixth Circuit Court of Appeals in Tierney v. City of Toledo, 824
F.2d 1497, 1506 (6th Cir. 1987), a case involving nonunion member police officers who did not
want part of their required service fees to the union to be contributed to political candidates and
causes unrelated to the union's duty as exclusive bargaining representative, concluded that:
Since Hudson places the burden of objection upon the employees (as contrasted
to burden of proof), we do not consider unreasonable the plan's provision that each
member be required to object each year so long as the union continues to disclose what
it must before objections are required to be made.
In June 1988 the United States Supreme Court in Communications Workers of America
v. Beck, 487 U.S. 735 (1988) held that, as here pertinent, that section of the NLRA which
permits an employer and a union to enter into an agreement requiring all employees in a
bargaining unit to pay periodic union dues and initiation fees as condition of continued
employment, whether or not employees otherwise wish to become union members, does not
also permit the union, over objections of dues-paying nonmember employees to expend funds
so collected on activities unrelated to collective bargaining activities.
In November 1988 the General Counsel issued a memorandum, GC Memorandum 88-
14, and on page 3 thereof indicated "a union can require nonmembers to file new objections …
each year."
In 1990 a United States District court in Kidwell v. Transportation Communications
International Union, 731 F. Supp 192, 205 (D. Md. 1990) indicated as follows:
The Court finds that the requirements for the annual renewal of objections and the 30-
day window for making objections are not unduly restrictive of plaintiffs' rights. These are
reasonable requirements of notice, since objections are not to be presumed on an on-
going basis. The employee has the burden of notifying the union of his or her objection.
See Street, 367 U.S. at 774 … ("[D]issent is not to be presumed - it must affirmatively be
made known to the union by the dissenting employee.") Moreover, an employee who
previously objected may have a change of heart and choose not to exercise his or her
right to object in future years. See Tierney, 824 F.2d at 1506 (annual objection
requirement not unreasonable).
When this decision was appealed, the United Sates Fourth Circuit Court of Appeals at 946 F. 2d
283 (4th Cir. 1991) reversed the district court's conclusion as to the right of a union member in
an agency shop to pay less than full dues but affirmed the district court's disposition of the
remaining issues. The Fourth Circuit at 285 noted that:
[T]he union … in an agency shop may arrange to collect the costs of collective
bargaining from all employees, but may not compel objecting nonmember employees to
pay for union activities other than those related to collective bargaining. The union thus
must have an objection procedure with respect to noncollective bargaining activities
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available to nonmembers.
For example, under the union's current procedure, in each calendar year, for thirty days
after receiving an April notice, nonmember employees may object to the expenditure of
their fees on activities unrelated to collective bargaining.
At 286 the Fourth Circuit noted that "[t]he judge also held that the union's procedure for handling
objections was permissible …." At 287 the court noted that "[t]he plaintiffs … have not appealed
from the judge's conclusion that the procedures did not violate the union's duty of fair
representation." And finally at 306 the Fourth Circuit indicated:
The judgment is REVERSED as to whether a union member can object to paying the
portion of union dues attributable to noncollective bargaining activities, and otherwise
AFFIRMED.
In March 1991 the United States Supreme Court in Air Line Pilots Association,
International v. O'Neill, 499 U.S. 65, 67 (1991) indicated:
We hold that the rule announced in Vaca v. Sipes, 386 U.S. 171, 190 … (1967) - that a
union breaches its duty of fair representation if its actions are either "arbitrary,
discriminatory, or in bad faith" - applies to all union activity, including contract
negotiation. We further hold that a union's actions are arbitrary only if, in light of the
factual and legal landscape at the time of the union's actions, the union's behavior is so
far outside a 'wide range of reasonableness,' Ford Motor Co. v. Huffman, 345 U.S. 330,
338 … (1953), as to be irrational.
In 1993 a United States District court in Abrams v. Communication Workers of America,
818 F. Supp. 393, 399 (D.D.C. 1993), indicated:
CWA's duty of fair representation is a duty that is judicially implied from its
statutory duty-under 29 U.S.C. §§ 158(a)(3), 159 to represent all bargaining unit
employees of a particular employer. See Steele v. Louisville & Nashville R. Co., 323
U.S. 192, 202 … (1944). This duty requires a union to "represent fairly the interests of all
bargaining-unit members during the negotiation, administration, and enforcement of
collective bargaining agreements.' International Bhd. of Elec. Workers v. Foust, 442 U.S.
42 … (1979)
A breach of a union's duty of fair representation occurs only when a union's
conduct toward a member of the collective bargaining unit is "arbitrary, discriminatory, or
in bad faith." Vaca v. Sipes, 386 U.S. 171, 190 … (1967); Price v. Int'l Union, UAW, 927
F.2d 88, 92 (2nd Cir. 1991). This standard applies to a union's contract administration,
enforcement, and negotiation, as well as any other instances where a union acts in a
representative role. Air Line Pilots v. O'Neill, 499 U.S. 65 … (1991). Under this standard,
the court's review of CWA's actions must be highly deferential. Id. The court can find a
breach of this duty only if CWA's actions "can be fairly characterized as so far outside a
'wide range of reasonableness,' … that [those actions] are wholly 'irrational' or
'arbitrary.' " (citation omitted).
….
In Hudson, the Supreme Court applied a higher, constitutional standard of scrutiny to the
procedures that the union there used to exact funds from nonmembers, but the
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Supreme Court did so because the employees involved worked in the public sector. The
union involved was the Chicago Teachers Union, and it had the approval of the Chicago
Board of Education to be the exclusive collective bargaining agent for the Board's
educational employees. Hudson, 475 U.S. at 294 …. As this court already has
concluded, no such state action exists in this case. 702 F. Supp. at 921 - 23. In the
absence of state action, the court has no basis for imposing Hudson's heightened
constitutional review.
At 400 the court indicated:
The duty of fair representation allows a wide range of reasonableness. O'Neill …. Such a
reasonableness standard is not equivalent to "the stringent tests applied in the First
Amendment context." United Steelworkers of America v. Sadlowski, 457 U.S. 102, 111
(1982) …. [footnote omitted.]
And at 403 the court indicated:
[The] … fourth argument is that CWA violates its duty of fair representation by
requiring nonmembers to object to the agency fee each year and by limiting the
objection period to just a few months. Plaintiffs rely on Hudson and Railway Clerks v.
Allen [373 U.S. 113 (1963)] for this position. The cases plaintiffs rely upon for this
position are inapposite at best.
Hudson does not support plaintiffs' claim. If anything Hudson supports CWA's
position that nonmembers have the obligation of making their objection known. Hudson
475 U.S. at 306 …. The footnote that plaintiffs cite to in Hudson … states that " '[d]issent
is not to be presumed - it must affirmatively be made known to the union by the
dissenting employee.' " 475 U.S. at 306 … citing Railway Clerks v. Allen, 373 U.S. at
119 …. This statement suggests that CWA is within its rights to require annual
objections.
In Railway Clerks v. Allen, the Supreme Court stated that by filing a complaint
against the union the nonmembers sufficiently had made their objection known. 373 U.S.
at 119 n. 6 …. Plaintiffs also try to use this statement in support of their claim. In Allen,
however, the union had not established an objection system and the filing of a legal
action was the nonmembers only recourse. That factual distinction makes Allen
unsupportive of plaintiff's position.10
CWA's requirement that nonmembers repeat their objections every year during a
specific time period provides an efficient yet fair system for objection. Because objection
is not to be presumed, Street, 367 U.S. at 774 …, CWA has a valid basis for requiring
yearly objections. Nor can the objection period be never ending if CWA wishes to
resolve nonmembers' disputes, tally its budget, and put the advance reduction process
into motion. [footnote omitted] CWA's procedure is not arbitrary but reasoned, and its
basis in law shows the procedure also is not discriminatory or in bad faith. The court
concludes that CWA's requirement of annual objections during a limited window period
does not violate its duty of fair representation.
__________
10 If anything, Allen supports CWA's requirement of repeated objections because there
the Supreme Court concluded that those who filed the complaint had to repeat those
objections through testimony if their objections were to survive to the end of the action.
373 U.S. at 119 ….
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In 1994 a United States District court in International Union of Electronic, Electrical,
Salaried, Machine and Furniture Workers, AFL-CIO v. NLRB, 41 F.3d 1532 (D.C. Cir. 1994), in
reviewing a Board order holding that a union breached its duty of fair representation by in bad
faith maintaining a union security agreement which the Board viewed as ambiguous
retroactively after the Board reversed longstanding NLRB policy, indicated at 1534:
[W]e find no substantial evidence, indeed no evidence whatsoever, to support the
Board's conclusion that the union acted in bad faith merely by maintaining a union-
security provision that was in conformity with longstanding, well-established Board
precedent. Because there is no evidence in the record to support the Board's finding of
bad faith, we find no basis for a duty-of-fair representation violation in this case. ….
The Board is free to reconsider its policy regarding the permissible scope of
union-security agreements, with an eye toward requiring unions to give full disclosure to
employees regarding their right to decline union "membership." In fact, from this date
forward unions are on notice that they risk breaching their duty of fair representation if
they adopt union-security provisions of the sort at issue here without appropriate "notice"
to employees who are covered by such provisions. In the instant case, however, we hold
that no violation occurred because the Union's actions were fully consistent with
established law.
At 1537 and 1538 the court indicated:
A bad-faith violation of the duty of fair representation "requires a showing of fraud, or
deceitful or dishonest action." Mock v. T.G. & Y. Stores Co. 971 F.2d 522, 531 (10th Cir.
1992). Courts have applied a "demanding standard" for finding bad faith under the duty
of fair representation, Swatts v. United Steelworkers, 808 F.2d 1221, 1225 (7th Cir.
1986), requiring a union's actions toward unit employees to be "sufficiently egregious or
so intentionally misleading [as] to be invidious," O'Neill v. Air Line Pilots Ass'n, Int'l, 939
F. 2d 1199, 1203 (5th Cir. 1991) (internal quotation omitted); see also Alicea v. Suffield
Poultry, Inc., 902 F.2d 125, 130 (1st Cir. 1990) (requiring for bad-faith violation of duty of
fair representation "serious misrepresentations that lack rational justification or are
improperly motivated").
In June 1995 a United States District court in Nielsen v. International Association of
Machinists & Aerospace Workers, Local Lodge 2569, 895 F. Supp. 1103, 1114 - 1115 (N.D. Ind.
1995) indicated:
Further support for the Union Defendant's position is found in Kidwell v. Transportation
Com Intern. Union, 731 F. Supp. 192 (D. Md. 1990), in which the court held that the
annual renewal of objections and the thirty-day window for objecting to the Union's
proposed fee were not "unduly restrictive of plaintiffs rights." Id. at 205
The court granted the Union's motion for Summary Judgment holding that a window period does
not violate the union's duty of fair representation. Plaintiff Nielsen's Motion for Summary
Judgment was denied.
In July 1995 a United States Court of Appeals in Abrams v. Communications Workers of
America, 59 F.3d 1373, 1381 - 1382 (D.C. Cir. 1995) indicated:
Finally, the employees argue that CWA's objection procedure violates its duty of fair
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representation by requiring them to object within a limited "window period" each year
and to renew their objections annually. As did the district court and other courts
considering similar union procedures,11 we find neither procedure unduly burdensome.
Regarding the window period, "[t]he union, as well as the employees, have an interest in
the prompt resolution of obligations and disputes. The … window facilitates prompt
resolution and leaves no doubt as to the timing of the requirement for an objection."
Kidwell v. Transportation Communications Int'l Union, 731 F.Supp. 192, 205 (D. Md.
1990), aff'd in part and rev'd in part on other grounds, 946 F.2d 283 (4th Cir. 1991), cert.
denied, 503 U.S. 1005 … (1992). [footnote omitted] Similarly, the annual renewal
requirement is permissible in light of the Supreme Court's instruction that "dissent is not
to be presumed - it must affirmatively be made known to the union by the dissenting
employee." Street, 367 U.S. at 774 …. "We do not consider unreasonable the [policy]
provision that each member be required to object each year so long as the union
continues to disclose what it must before objections are required to be made." Tierney v.
City of Toledo, 824 F.2d 1497, 1506 (6th Cir. 1987).
__________
11 818 F.Supp. at 403 ….
In 1995 the Board in California Saw & Knife Works, 320 NLRB 224, 236 n. 62 (1995)
indicated:
The IAM's [International Association of Machinists and Aerospace Workers, AFL-
CIO] requirement that Beck objections be registered annually is not alleged to be
unlawful by the General Counsel. We note that courts have approved the annual
objection requirement in the NLRA, RLA, and public sector context. See Abrams v.
Communication Workers, supra, 59 F.3d at 1381; Kidwell v. Transportation
Communications Union, supra, 731 F.Supp. at 205; Tierney v. City of Toledo, 824 F.2d
at 1506.
There the Board concluded that, as alleged by General Counsel, the window period involved in
that case - as it applied solely to individuals who resign their union membership after the
expiration of the window period, effectively operated as an arbitrary restriction on the right to be
free to resign from union membership.
In 1996 the United States Seventh Circuit Court of Appeals in Nielsen v. International
Association of Machinists & Aerospace Workers, Local Lodge 2569, 94 F.3d 1107, 1116 - 1117
(7th Cir. 1996), in affirming the judgment of the aforementioned district court in its entirety,
utilized some language which in the situation at hand may be instructional. The court indicated:
It is not unreasonable for a union to require existing members or full fee
nonmembers to voice their objections in a timely fashion and to be aware that the price
of not doing so will be to wait at most ten or eleven months before implementing their
new status. Life is full of deadlines and we see nothing particularly onerous about this
one. When people miss the deadline for filing an appeal to this Court, their rights can be
lost forever, not just for eleven months, but that does not make time limits for filing
appeals in violation of the law. Other courts that have considered "window periods" have
come to the same conclusion. See Abrams, 59 F.3d … ; Tierney … 824 F.2d …; ….;
Kidwell … 731 F.Supp. ….
The Board's position in this respect has been inconsistent. In the General
Counsel's Guidelines Concerning CWA v. Beck it stated clearly that "if the union has a
'time window' for filing objections, the notice must set forth that information and the time
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period must be reasonable." …. The obvious implication of this statement is that at least
some "window periods" are permissible. In its more recent decision in California Saw
and Knife Works, however, the Board found that the IAM's January "window period"
operated as an arbitrary restriction on the right to be free to resign from union
membership and this violated the duty of fair representation. 320 NLRB … [224] (1995).
The Board's position in California Saw and Knife, however, gives no weight at all to the
union's legitimate administrative needs - indeed, it almost requires the union to find the
system that imposes the least restriction on Beck rights possible. Such exacting scrutiny
is inconsistent with Vaca and O'Niell, which require us to uphold the union's actions as
long as they fall within a generous range of reasonableness. Because the IAM has
offered valid administrative justifications for its system here, we conclude that it has not
violated its duty of fair representation by imposing an annual "window period" for
registering fee objections. [emphasis added]
In January 1997 the United States Sixth Circuit Court of Appeals in Michigan State AFL-
CIO v. Miller, 103 F.3d 1240, 1243 - 1244 (6th Cir. 1997) indicated:
In 1990, the Supreme Court ruled that prohibiting corporations, but not labor unions,
from making political expenditures from their general treasuries does not violate the
Constitution. See Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 660-66 …
(1990).
The Chamber [Michigan Chamber of Commerce] then shifted its focus from
litigation to legislation, seeking to have the statutory restrictions on corporate political
expenditures applied to unions as well. With the Chamber's support, Michigan's
legislature in May of 1994 enacted Public Act 117, amending its Campaign Finance Act,
Mich, Comp. Laws Ann. §§ 169.201 - .282 (West 1996). See 1994 Mich. Pub. Acts 117.
The involved union plaintiffs, as here pertinent, challenged labor unions being required to obtain
affirmative consent at least once a year from members making contributions to a separate
segregated fund by means of an automatic payroll deduction. As here pertinent, the court ruled
that the statute requiring labor unions to obtain affirmative consent at least once per year from
members utilizing automatic payroll deduction to make contributions to a political contribution
fund did not violate the First Amendment, under an intermediate scrutiny analysis.
In September 1998 the United States Fifth Circuit Court of Appeals in Shea v.
International Association of Machinists and Aerospace Workers, 154 F.3d 508 (5th Cir. 1998),
which involved airline employees subject to RLA, ruled against the involved union with respect
to the requirement that an objector annually renew his or her objection status. In taking this
action the Fifth Circuit reversed the lower Federal court, the United States District Court for the
Northern District of Texas, which found that IAM's procedures do not violate the union's duty of
fair representation and had entered summary judgment in favor of the union. The Fifth Circuit at
514 indicated that "since Abood [v. Detroit Bd. of Edu., 431 U.S. 209 (1977) it is clear that there
is no legal reason to require more than a written, continuing objection to all expenditures or
activities not germane to collective bargaining." At 515 the court indicated
The objection procedure at issue in this case fails to meet the Hudson standard [Chicago
Teachers Union v. Hudson, 475 U.S. 292 (1986)]; it does not minimize the infringement.
The current procedure is cumbersome to both the union and the objecting employees
because it requires annual computer entries. If the IAM recognized continuing objections
made expressly and in writing, the employee would notify the union only once and
neither the union nor the individual would be bothered with the annual database entries.
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….
Certainly the procedure that least interferes with an employee's exercise of his First
Amendment rights is the procedure by which an employee can object in writing on a
continuing basis.
The court went on to explain why it did not agree with the Sixth Circuit in Tierney, the D.C.
Circuit in Abrams, the Maryland District court in Kidwell, and the Seventh Circuit in Nielsen
(apparently to the extent that that court relied on the duty of fair representation to decide that
case). Also, the court indicated that both Nielsen and California Saw & Knife Works are
distinguishable from the current case because they were decided under the NLRA; and that
some Supreme Court decisions may have arguably indicated that under the NLRA there is not
sufficient state action to trigger constitutional protections. At 516 and 517 the court in Shea
indicated:
Because the RLA is subject to constitutional limits, a reviewing court may properly
invoke the protections of the First Amendment and need not rely on the arguably weaker
DFR [duty of fair representation] standard. For this reason we apply the Hudson First
Amendment standard rather than the DFR standard.
The district court in this case, however, did not follow Hudson, and instead
reviewed the objection procedures under the DFR standard. Under the DFR, the court
found that the objection procedure must be upheld because it is not arbitrary,
discriminatory, or in bad faith towards the objecting nonunion employees. The lower
court's reliance on the DFR standard is misplaced. First the DFR standard is not the
appropriate standard of review in this case, and second, even if the DFR were the
appropriate standard, the annual objection requirement violates it.
Since the union can give no justification of this annual objection procedure, and
since it is more cumbersome and less efficient than a system that allows continuing
written general objections, the procedure is unreasonable and arbitrary. It is an
unnecessary and arbitrary interference the employees' First Amendment rights that fails
to meet the union's duty of fair representation as it has been defined in Vaca and O'Neill.
….
More fundamentally, we remain unconvinced that the union's objection
procedures should even be reviewed under the DFR standard. Even though other union
shop cases have been decided under the DFR, we will not apply the DFR standard in
this case.
….
But this is a dispute between the union and the objecting employees that does not
require us to second-guess the union's judgment …. Rather we are called upon to
protect the free speech rights of objecting employees from intrusive union procedures.
….
We hold that the IAM's procedure violates Hudson's requirements that the First
Amendment infringement be minimized. Alternatively, we hold that the annual objection
requirement violates the IAM's duty of fair representation.
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In November 1998 the United States Supreme Court in Marquez v. Screen Actors Guild,
Inc., 525 U.S. 33, 45-46 (1998), which involves the issue of whether a union breached its duty of
fair representation merely by negotiating a union security clause that tracks the language of
§ 8(a)(3) of the NLRA, indicated:
That our holding in Beck did not alter the standard for finding conduct "arbitrary"
is confirmed by our decision in Air Line Pilots. In this case, decided three years after
Beck, we specifically considered the appropriate standard for evaluating conduct under
the "arbitrary" prong of the duty of fair representation. We held that under the "arbitrary"
prong, a union's actions breach the duty of fair representation "only if [the union's
conduct] can be fairly characterized as so far outside a 'wide range of reasonableness'
that it is wholly 'irrational' or 'arbitrary.' 499 U.S. at 78 … (quoting Ford Motor Co. v.
Huffman, supra at 338 …). This "wide range of reasonableness" gives the union room to
make discretionary decisions and choices, even if those judgments are ultimately wrong.
In 2000 the United States District Court for the Eastern District of Virginia in Lutz v.
International Association of Machinists and Aerospace Workers, 121 F.Supp. 498 (E.D. Va.
2000), which involved airline nonunion employees subject to RLA challenging union policy
requiring nonmembers to submit their objections to paying fees unrelated to costs of collective
bargaining each year rather than permitting continuing objections, indicated that the IAM
rejected continuing objections and would not even accept them as an objection for the year they
were submitted.19 At 504 and 505 the court indicated:
The threshold merits determination is whether the annual objection procedure is
subject to scrutiny under the First Amendment or the DFR. This is not an
inconsequential determination as scrutiny under the First Amendment is significantly
more rigorous and less deferential than DFR review. [footnote omitted]
At 507 the court indicated:
In sum, the annual objection requirement fails First Amendment scrutiny because
the requirement is without valid justification and imposes an undue burden that creates a
risk that funds "will be used … to finance ideological activities unrelated to collective
bargaining." Hudson, 475 U.S. at 305 ….27 Accordingly, because the procedure is in
violation of the nonmembers' First Amendment rights, summary judgment should be
granted in favor of the [employee] plaintiffs.
__________
27 The IAM also argues that the annual objection requirement is justified because the
Supreme Court placed the burden of objecting on the employee. See Street, 367 U.S.
740 …. This argument fails because there is an important difference between placing the
burden of objection on an employee and imposing yet a further restriction that makes the
burden onerous. An employee's burden to make an affirmative objection may easily be
satisfied through submission of a continuing objection.
General Counsel indicates on brief that "[u]ntil 2003, the General Counsel had never
taken the position that an annual renewal requirement for nonmember Beck objectors violated
the Act." General Counsel's brief, page 12.

19 It appears that IAM elevated form over substance.
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In 2007 the United States Second Circuit Court of Appeals in Seidemann v. Bowen, 499
F.3d 119, 124 (2nd Cir. 2007), which involved a professor suing a public sector union, and the
United States District Court for the Eastern District of New York granting the union summary
judgment, indicated:
This Circuit has mandated that unions use "narrowly drawn" objection
procedures to protect the First Amendment rights of agency fee payers, while allowing
unions and government to pursue their needs in "establishing a rational system to
consummate labor negotiations." Andrews v.Educ. Ass'n of Cheshire, 829 F.2d 335, 339
(2nd Cir. 1987). Although we have not required that objection procedures be the "least
restrictive" means available, they must, nonetheless, be "narrowly drawn" to comply with
the strictures imposed by Hudson. Andrews … at 339-40; cf. Price v. Int'l Union UAW,
927 F.2d 88, 92 (2nd Cir. 1991) (distinguishing cases involving private employee unions
from public sector union cases, where constitutional concerns warrant the Hudson
safeguards). The issue of principal concern to us in this case is whether requiring
agency fee holders to object annually to payment of expenses other than for costs of
collective bargaining meets this mandate.
At 126 the court indicated "[w]e hold the annual objection requirement imposed by PSC in this
case is an unnecessary burden on an employee's exercise of First Amendment rights. See
Hudson, 475 U.S. at 303 …."
As indicated above, this case will be decided under the duty of fair representation
standard. Of all the Federal courts which have considered the annual renewal requirement, only
three, Shea (the Fifth Circuit since the Federal District court in that case found in favor of the
union under a duty of fair representation standard), Lutz, and Seidmann (the Second Circuit
since the Federal District Court in that case granted the union summary judgment) have found
against the unions involved in those cases. As pointed out by General Counsel on brief, none of
those three cases arose under the Act. Two of those three, Lutz and Seidmann, decided the
issue on the basis of the more rigorous First Amendment standard which is not applicable in the
situation at hand. Only the Fifth Circuit in Shea, in deciding this issue using the First
Amendment standard, in the alternative, spoke to the duty of fair representation standard. But
as General Counsel on brief points out, the Fifth Circuit in Shea "continued to infuse First
Amendment principles into its analysis of the union's duty of fair representation" in that the court
at 517 stated that the annual objection procedure is an "unnecessary and arbitrary interference
with the employees' First Amendment rights that fails to meet the union's duty of fair
representation …." Brief of General Counsel, page 19. I agree with General Counsel.
Additionally, as noted above, the Fifth Circuit indicated at 517: "[s]ince the union can give no
justification of this annual objection procedure, and since it is more cumbersome and less
efficient than a system that allows continuing written general objections, the procedure is
unreasonable and arbitrary." The Fifth Circuit at 517 goes on to indicate that in duty of fair
representation cases
A highly deferential standard of review is appropriate … because the court is being
called upon to review the union's performance of union functions and should not
substitute its own judgment of how a union should conduct its affairs. …. To avoid over-
reaching, courts must give great leeway to unions in cases concerning such disputes.
But this is a dispute between the union and the objecting employees that does not
require us to second-guess the union's judgment as exclusive bargaining representative.
Rather we are called upon to protect the free speech rights of objecting employees from
intrusive union procedures.
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The Fifth Circuit does not explain how the fact that in the court's opinion the union's system is
cumbersome and less efficient equates with arbitrary under the duty of fair representation
standard, namely the union's behavior is so far outside a wide range of reasonableness as to be
irrational. While the Fifth Circuit professes not to second guess the union, this appears to be
exactly what it did with respect to the duty of fair representation. In view of the above, it is
questionable whether the Fifth Circuit's reasoning with respect to the duty of fair representation
can serve as precedent. If the position of the Fifth Circuit in Shea is not considered precedent
regarding the duty of fair representation, then it has not been shown that any Federal court has
found against a union, with respect to the annual renewal requirement, utilizing the duty of fair
representation standard.20
As pointed out by the parties, a number of Administrative Law Judges have issued
decisions on this issue. However, the Board has not yet decided a case on this issue, and it has
not ruled on the exceptions to any of these Administrative Law Judges' decisions. Therefore, the
judges' decisions are not precedent. Additionally, four of the five cited Administrative Law Judge
decisions concluded that the union involved did not show a legitimate justification for the annual
renewal requirement. As General Counsel points out on brief, in the instant case the union did
show a justification for the annual renewal requirement. More specifically, Counsel for General
Counsel on brief indicates:
Applying the above considerations to the instant case, no violation should be
found, as Respondent has articulated a reasonable basis for its annual renewal
requirement, and whatever slight burden suffered by Richards, Echegaray, and Yost in
having to annually renew their objection is outweighed by the [Respondent's]
justifications …. [Counsel for General Counsel's brief, page 21]
As indicated by Administrative Law Judge Biblowitz in International Union, United
Automobile, Aerospace & Agricultural Implement Workers of America, Local Union #376 (Colt's
Manufacturing Company, Inc.), 34-CB-2631, JD(NY)-06-08 (March 3, 2008), the Board in
denying cross motions for summary judgment, remanded the proceeding for a determination of
the extent of the burden that the annual renewal requirement places on objectors and the
legitimacy of the union's asserted business justification for the annual renewal requirement.
The United States Supreme Court, as noted above, in Air Line Pilots Association,
International v. O'Neill, 499 U.S. 65, 67 (1991) indicated:
We hold that the rule announced in Vaca v. Sipes, 386 U.S. 171 … (1967) - that a union
breaches its duty of fair representation if its actions are either 'arbitrary, discriminatory,
or in bad faith' - applies to all union activity, including contract negotiation. We further
hold that a union's actions are arbitrary only if, in light of the factual and legal landscape
at the time of the union's actions, the union's behavior is so far outside a 'wide range of
reasonableness,' Ford Motor Co. v. Huffman, 345 U.S. 330, 338 … (1953), as to be
irrational. [emphasis added]
Taking the last first, namely bad faith, the Charging Parties argue that the union is burdening
their exercise of their § 7 rights for the sole purpose of dissuading them from exercising these
very rights and options; that this is the very epitome of an action taken in bad faith by an
exclusive representative; and that the annual renewal requirement only makes it difficult for a

20 It is noted that the Second Circuit in Seidemann on remand directed the district court to
address the issue of the state law duty of fair representation claim.
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member to exercise the right to withdraw from the union. Respondent submits on brief that it
cannot be found to have acted in bad faith for following an annual objection procedure that has
been expressly approved the Office of General Counsel and the courts.21 As found below, the
burden on the Charging Parties of the annual renewal is, at best, insignificant. The annual
renewal requirement does not make it difficult for a member to exercise the right to withdraw
from the union. As noted above, the court in International Union of Electronic, Electrical,
Salaried, Machine and Furniture Workers, AFL-CIO v. NLRB, 41 F.3d 1532, 1537 and 1538
(D.C. Cir. 1994), in reviewing a Board order holding that a union breached its duty of fair
representation by acting in bad faith, indicated:
A bad-faith violation of the duty of fair representation "requires a showing of fraud, or
deceitful or dishonest action." Mock v. T.G. & Y. Stores Co. 971 F.2d 522, 531 (10th Cir.
1992). Courts have applied a "demanding standard" for finding bad faith under the duty
of fair representation, Swatts v. United Steelworkers, 808 F.2d 1221, 1225 (7th Cir.
1986), requiring a union's actions toward unit employees to be "sufficiently egregious or
so intentionally misleading [as] to be invidious," O'Neill v. Air Line Pilots Ass'n, Int'l, 939
F. 2d 1199, 1203 (5th Cir. 1991) (internal quotation omitted); see also Alicea v. Suffield
Poultry, Inc., 902 F.2d 125, 130 (1st Cir. 1990) (requiring for bad-faith violation of duty of
fair representation "serious misrepresentations that lack rational justification or are
improperly motivated").
The Charging Parties have not made such a showing. The Charging Parties' claims regarding
bad faith have no merit.
With respect to whether the annual renewal requirement for objectors is discriminatory,
the Charging Parties argue that this is the situation in that members do not have to annually
renew their membership or dues checkoff authorizations. Respondent on brief submits that the
duty of fair representation affords a union a wide range of reasonableness while it makes it clear
that the right to resign is unfettered; that a claim of inconsistency is not sufficient to make out a
breach of the duty of fair representation when dealing with different matters; that union
membership/checkoff is not similarly situated to Beck objections when viewed "in light of the
factual and legal landscape," Air Line Pilots v. O'Neill, supra; that union membership is
regulated by the Labor Management Reporting and Disclosure Act, which specifically forbids a
union to summarily terminate an employee's membership for any reason other than
nonpayment of dues, 29 U.S.C. § 411(a)(5); that checkoff authorization cards are expressly
regulated by Section 302(c)(5) of the Labor Management Relations Act, which specifically states
the period for which a dues authorization may be treated as irrevocable, 29 U.S.C. § 186(c)(5);
that "[t]he union chooses to do exactly what Congress permits in Section 302(c)(4)," transcript
page 63; that Beck objections are regulated by the duty of fair representation, which has, so far,
been interpreted to allow unions to handle objections on an annual basis; that the union's
conduct has been fully consistent with the governing law as articulated by the authorities
responsible for enforcing it; that any "inconsistency" must, therefore, be attributed to the
authoritative articulations of the law and not to the union; that the union's policies regarding
checkoff authorization/membership versus nonmember objections are not inconsistent but are
based on differences in the law and how these matters are regulated; and that the allegation of
inconsistency is a red-herring and is not a basis to find a duty of fair representation breach.

21 While the position of General Counsel may not be binding on the Board, unless and until
the Board finalizes its position with respect to the annual renewal requirement, the fact that the
Board may not be bound by the position of General Counsel in and of itself does not mean that
a union acted in bad faith or arbitrarily.
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For the reasons given by Respondent, it has not been shown that Respondent's annual renewal
requirement of objector status is discriminatory under the duty of fair representation standard.
Before embarking on an analysis of whether the union's annual renewal requirement for
objections is arbitrary, in light of all that has gone before, it appears that it is advisable to
reiterate this aspect of the duty of fair representation standard. As noted above, the United
States Supreme Court in Air Line Pilots Association, International v. O'Neill, 499 U.S. 65, 67
(1991) indicated:
We hold that the rule announced in Vaca v. Sipes, 386 U.S. 171 … (1967) - that a union
breaches its duty of fair representation if its actions are either 'arbitrary, discriminatory,
or in bad faith' - applies to all union activity, including contract negotiation. We further
hold that a union's actions are arbitrary only if, in light of the factual and legal landscape
at the time of the union's actions, the union's behavior is so far outside a 'wide range of
reasonableness,' Ford Motor Co. v. Huffman, 345 U.S. 330, 338 … (1953), as to be
irrational. [emphasis added] [22]
The Charging Parties argue that the union's action requiring objectors to annually renew
their objection is arbitrary since, as an administrative matter, it is easier for the union to accept
one continuing objection and charge only reduced financial core fees than to send out multiple
quarterly mailings and refund checks in exchange for an annual objection; that the arbitrary
nature of the policy is made particularly apparent by the existence of a 30-day window period
and the use of the employee's hire date since, with respect to the former why couldn't the
window be 45, 60, 90, or 120 days, and, with respect to the latter, the different hire dates of
each employee must surely be a burden on the union (as well as employees) to coordinate all of
these disparate renewal dates; that the choice of the hire date is arbitrary; that the Board in
California Saw and Knife Works, 320 NLRB 224 (1995) struck down a window period that
limited employees' objections to a single calendar month, regardless of when they resigned; and
that the same rationale applies here. The Board at 236 in California Saw and Knife Works,
indicated that it agreed with the allegation of General Counsel that the window period in that
case violated the Act as applied solely to employees who resigned their membership following
the expiration of the window period in that proceeding. There is no such allegation in this
proceeding. Indeed, there is no showing that this is the case in the instant proceeding. With
respect to the remaining arguments of the Charging Parties on brief regarding whether the
union's procedure is arbitrary, while the Charging Parties may think that there are better
approaches, this amounts to nothing more than an attempt to substitute judgment and does not
demonstrate that the union has acted arbitrarily, breaching of the duty of fair representation.
With respect to whether it actions are arbitrary, Respondent on brief submits that the
Charging Parties' burden of sending a letter annually at a date that has been clearly identified is
minimal, if not inconsequential; that the renewal date is linked to the employee's hiring

22 As noted above, the Supreme Court at 45 and 46 in Marquez v. Screen Actors Guild, Inc.
subsequently indicated:
[A] union's actions breach the duty of fair representation "only if [the union's conduct]
can be fairly characterized as so far outside a 'wide range of reasonableness' that it is
wholly 'irrational' or 'arbitrary.' 499 U.S. at 78 … (quoting Ford Motor Co. v. Huffman,
supra at 338 …). This "wide range of reasonableness" gives the union room to make
discretionary decisions and choices, even if those judgments are ultimately wrong.
This slight change in the language, which was previously utilized by the Court at one point in
Air Line Pilots, does not alter the standard.
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anniversary date, which is a reasonable time-frame; that the annual renewal requirement has
been upheld by several Federal courts thus precluding any finding of arbitrariness; that
Respondent acted in reliance upon existing authority; that while General Counsel no longer
adheres to its original and longstanding position approving a procedure requiring nonmembers
to file new objections each year, Respondent's reliance on prior decisions and other precedent
cannot be viewed as arbitrary conduct, at least not until the Board - as opposed to the General
Counsel - has ruled on this issue; that by providing for an annual objection, the union's
procedure gives the union reasonable assurance that only employees who object will be entitled
to pay a reduced agency fee; that because annually Respondent sends out information such as
audits and reports, the chargeable versus nonchargeable data changes each year, and the
objector is giving up important rights, Respondent believes that it is appropriate to ask an
objector to bear this in mind and annualize his or her objections; that the union provides
advanced reduction payments on a quarterly basis to those objectors whose employers withhold
the union security fee at the full amount of regular dues, and the renewal requirement provides
some assurance to the union to be certain it is not paying amounts to persons who are no
longer employed within covered bargaining units, whether such persons leave employment due
to a plant closure, layoff, retirement, or resignation; that surely it is not irrational for the union to
seek to avoid making advanced reduction payments to persons who no longer are subject to
union security fee withholding; and that Respondent's annual renewal requirement is lawful
since it serves legitimate purposes.
For the reasons given above, the Respondent has shown that it has legitimate
justifications for its annual renewal requirement. As already noted, General Counsel agrees.
With respect to the burden on the Charging Parties, the burden of an annual renewal
requirement has been described as minimal, and as slight as in the cost of mailing a letter or
postcard every year to the union and keeping themselves aware of when they have to do that.23
The Seventh Circuit Court of Appeals at 1116 in Nielsen in addressing the window period
indicated that "[l]ife is full of deadlines and we see nothing particularly onerous about this one."
The only burden is for the objector to annually renew in writing his or her objection within a 30-
day period which is linked to his or her hire date. If the objector does not annually renew his
objector status there is a consequence. But technically the consequence is not part of the
burden in that if the objector complies and submits to the union his annual objection, there is no
consequence. The union controls the action which imposes the burden - the annual renewal
requirement. The objector controls whether or not there is a consequence.
As noted above, the Charging Parties attorneys at one point in their brief indicate that,
as an alternative to Respondent's procedure, the Union "could simply send a letter to the small
number of objectors (estimated to be 300 by the union's witness, TR 64) asking them to verify
their status as active workers instead of being 'retired, resigned, or laid off,'" (Charging Parties'
brief, pages 23 and 24) Apparently Charging Parties' attorneys do not view the physical writing
of a letter or the physical filling out of a form by the Charging Parties and mailing it to the Union
to be a burden since this is what they are recommending as an alternative. That being the case,
apparently the Charging Parties' attorneys are arguing that the burden on the Charging Parties
is limited to keeping track of their hire date and a 30-day period linked to the hire date. As one
ages, one tends to want to forget his or her birth date, which at a certain stage of life is just a

23 The Charging Parties who testified herein indicate that they send their annual renewal
notice to the union by certified mail. There is no requirement that the annual renewal be
forwarded to the union by certified mail. Indeed, such a requirement was found to be unlawful in
California Saw & Knife Works. This approach is voluntary on the part of the Charging Parties.
They did not show that there was any need for this approach.
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reminder of how old one is. But if one were to be rewarded monetarily for remembering the
date, then there would be an incentive not to forget. All things considered, it is no real burden to
remember one's hire date and a 30-day period linked to the hire date. The burden of writing and
mailing a one-line note is insignificant. It has not been shown "in light of the factual and legal
landscape at the time of the union's actions, [that] the union's behavior is so far outside a 'wide
range of reasonableness,' Ford Motor Co. v. Huffman, 345 U.S. 330, 338 … (1953), as to be
irrational. [emphasis added]
It has not been shown that Respondent in any way breached its duty of fair
representation.24 Accordingly, on these findings of fact and conclusions of law and on the entire
record, I issue the following recommended25

24 Although it is not a consideration in determining whether the union here breached its duty of
fair representation, there are some practical problems with taking a continuing objection
approach or variations thereof. One of the Charging Parties in one of the Administrative Law
Judge decisions cited by the parties herein, International Union, United Automobile, Aerospace
& Agricultural Implement Workers of America, Local Union #376 (Colt's Manufacturing
Company, Inc.), 34-CB-2631, JD(NY)-06-08 (March 3, 2008), wanted his objection to be valid
for three years. Such an objection would not be an annual renewal or a continuing objection. If
objectors can assert fixed periods for their objections, i.e. 2, 3, 4, or 5 years, or a number of
months, or for the life of the current collective bargaining agreement, it could become an
administrative nightmare. Also, if objectors can have a continuing objection and if, as ruled by
the Sixth Circuit regarding Michigan, unions are required to annually obtain consent from union
members who do not object to political expenditures by the union, does this give rise to a
disparity? Additionally, although it is not an issue here, the fact that a United States Circuit Court
of Appeals, utilizing the First Amendment requires a union in a non-NLRA case to accept
continuing objections does not, in my opinion, in and of itself mean that a union is acting
arbitrarily when it continues its annual renewal requirement in NLRA situations where the duty of
fair representation standard applies (instead of the First Amendment standard). The Federal
courts which have ruled on annual renewal requirements indicate that the First Amendment
standard is more rigorous (Hudson's requirements that the First Amendment infringement be
minimized) than the duty of fair representation standard (that the action not be arbitrary,
discriminatory or taken in bad faith). That being the case, in my opinion, the fact that a union
might, after a court ruling, accept continuing objections under the RLA or in a public sector
situation (both of which are subject to Constitutional limitations) while continuing to require
annual renewal under the NLRA, which is not subject to review under the First Amendment,
would not in and of itself justify a finding of a breach of the duty of fair representation. A number
of Federal courts have ruled in favor of unions regarding annual renewal requirements. The First
Amendment standard and the duty of fair representation standards differ. Unless and until this
matter is resolved, any perceived inconsistency would not, in my opinion, justify a finding of a
breach of the duty of fair representation standard. If a finding of arbitrary in a duty of fair
representation case is based solely on the fact that the union also accepts continuing objections
in a non-NLRA situation after a court ruled against the union on First Amendment grounds, then,
in effect, the First Amendment is being utilized improperly to decide the NLRA case. As
mentioned above, one should also consider in the mix the fact that unions, at least in one state
(Michigan) of a United States Circuit Court of Appeals' jurisdiction, are required to obtain
annually the authorization of members, who have dues deductions, to expend funds on political
matters.
25 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
Continued
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ORDER
The complaint is dismissed.
Dated, Washington, D.C., August 6, 2009.
_____________________
John H. West
Administrative Law Judge
_________________________
waived for all purposes.