Communications Workers of America and Communications Workers of America, Local 4309

National Labor Relations Board - Board Decisions

Jun 10, 2013

359 N.L.R.B. 1136 (N.L.R.B. 2013)

1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

359 NLRB No. 131
Communications Workers of America and Commu-
nications Workers of America, Local 4309
(AT&T Teleholdings, Inc. d/b/a AT&T Midwest
and the Ohio Bell Telephone Company) and
Sanda Ilias. Case 08–CB–010487
June 10, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On September 17, 2012, Administrative Law Judge
John T. Clark issued the attached supplemental decision
on remand.
1
The Respondents, Communications Work-
ers of America (CWA) and Communications Workers of
America, Local 4309 (CWA Local 4309), filed excep-
tions and a supporting brief, the Charging Party filed an
answering brief, and the Respondents filed a reply brief.
The Charging Party filed exceptions and a supporting
brief, the Respondents filed an answering brief, and the
Charging Party filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
2

The Board has considered the supplemental decision
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings, and
conclusions and to adopt the recommended Order as
modified.
3

The issue presented is whether the Respondents violat-
ed their duty of fair representation by requiring employ-
ees they represent who are not union members and who
seek objector status under Communications Workers v.
Beck
4
to assert their objection on an annual basis. We
agree with the judge’s finding that the Respondents’ an-
nual renewal requirement is arbitrary and, therefore, vio-
lates Section 8(b)(1)(A) of the Act. We further find that
the judge recommended the appropriate remedial relief.

1 On January 9, 2009, Administrative Law Judge Wallace H. Nations
issued a decision in this proceeding. By unpublished Order issued on
October 26, 2011, the Board remanded this case for further considera-
tion in light of Machinists Local 2777 (L-3 Communications), 355
NLRB 1062 (2010), petition for review dismissed No. 10-1297, 2010
WL 4340436 (D.C. Cir. 2010), and Auto Workers Local 376 (Colt’s
Mfg. Co.), 356 NLRB 1320 (2011), rev. dismissed and order vacated as
moot sub nom. Gally v. NLRB, 487 Fed. Appx. 661 (2d Cir. 2012).
Judge Nations retired prior to the Board’s remand.
2 Chairman Pearce, who is a member of the present panel, has
recused himself and took no part in the consideration of this case.
The Charging Party contends that the Board lacks a quorum because
the President’s recess appointments are constitutionally invalid. We
reject this argument for the reasons stated in Bloomingdale’s, Inc., 359
NLRB 1003 (2013).
3 We have modified the judge’s recommended Order to conform to
the Board’s standard remedial language.
4 487 U.S. 735 (1988).
Facts
Charging Party Sanda Ilias is employed by AT&T
Midwest and represented by Respondent CWA Local
4309. Respondent CWA is primarily responsible for
formulating and administering the system used by Re-
spondent Local 4309 and all subordinate bodies of the
CWA to satisfy their Beck obligations.
The Respondents administer that system on an annual
basis, July 1 to June 30. They require that would-be or
current Beck objectors assert that status annually, during
the month of May; individuals who fail to do so are not
treated as objectors during the upcoming yearly cycle,
and, as a result, are charged full dues and fees. The Re-
spondents mail a copy of their Beck policies, including
the annual renewal requirement, to all employees they
newly represent and to any represented employees who
resign their membership and become agency fee payers.
The policies are also published annually in the
March/April edition of the CWA newsletter, which is
sent to all employees represented by Respondent CWA
or its subordinate bodies. Other than those mailings, the
Respondents do not send renewal reminders to objectors.
On September 4, 2004, Charging Party Ilias sent a let-
ter to Respondent CWA Local 4309 resigning her union
membership and registering a Beck objection. Her objec-
tion letter did not request a continuing objection, and she
failed to subsequently renew her objection annually. The
Respondents have continued to charge Ilias full dues and
fees.
Discussion
A.
In L-3 Communications, the Board determined that a
union’s maintenance of an annual renewal requirement
for Beck objectors is unlawful unless the burden it im-
poses on employees is de minimis or the union demon-
strates a legitimate justification for the requirement. L-3
Communications, 355 NLRB at 1064–1065; see Colt’s
Mfg. Co., 356 NLRB1320, 1322. The Respondents do
not except to the judge’s finding that the burden their
policies impose on objectors is more than de minimis.
Rather, they argue that the judge erred in rejecting their
asserted justifications.
The Respondents assert that statistics from each objec-
tion period are forwarded by Respondent CWA to the
affected individual local unions and regional vice presi-
dents; the identification of pockets of Beck objections,
they assert, assists the local unions in assessing how their
performance is perceived by the employees they repre-
sent. We agree with the judge that the foregoing expla-
nation fails to establish a legitimate justification for the
Respondents’ annual renewal requirement.
COMMUNICATION WORKERS OF AMERICA 1137

We recognize that the Respondents have a legitimate
interest in addressing Beck-related dissent among the
employees they represent.
5
The Respondents did not
show, however, that they have ever used the information
identifying the location or number of Beck objectors as a
basis for taking any action in this regard. The mere col-
lection of data is not a sufficient justification for an an-
nual renewal requirement.
Because the Respondents have failed to articulate a le-
gitimate justification for the burden their annual renewal
requirement imposes on potential objectors, we agree
with the judge that the Respondents violated their duty of
fair representation, and accordingly violated Section
8(b)(1)(A) of the Act, by maintaining the requirement.
6

B.
The Charging Party and the Respondents except to the
remedial relief set forth in the judge’s decision. The
Charging Party argues that the judge erred by failing to
provide make-whole relief to her and to all other similar-
ly situated Beck objectors represented by the Respond-
ents. The Respondents, in turn, argue that the Board
need not order them to rescind their unlawful policy and
republish a revised lawful policy, because they have al-
ready done so. For the reasons that follow, we do not
find merit in either exception and therefore adopt the
remedy recommended by the judge.
In L-3 Communications, the Board declined to impose
the make-whole remedy that a Beck violation would oth-
erwise entail. The Board reasoned that, particularly in
light of the consistent prior approval by the courts of an
annual renewal requirement, it would be unfair to require
a union whose case was pending when L-3 Communica-
tions was issued to do more than rescind its unlawful
annual renewal requirement and give notice of the rescis-
sion to nonmember employees it represents and/or pub-
lish a lawful revised policy. L-3 Communications, 355

5 As the Board has previously observed, a system that allows contin-
uing objections—rather than requiring annual renewal—does not pre-
vent a union from seeking to persuade objectors, through noncoercive
means, to change their minds and become members of the union. L-3
Communications, 355 NLRB at 1066.
6 The Charging Party, whose unfair labor practice charge was sus-
tained, nevertheless argues that the judge erred by applying the duty of
fair representation standard to evaluate the Respondents’ conduct. The
Charging Party asserts that the judge should have applied a statutory
and constitutional standard. The Board in L-3 Communications con-
firmed the applicability of the duty of fair representation standard rather
than a statutory standard, and the Board has previously rejected apply-
ing a constitutional standard because of the absence of state action. See
L-3 Communications, 355 NLRB at 1064; California Saw & Knife
Works, 320 NLRB 224, 228 (1995), 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).

NLRB at 1069; see also Steel Workers (Cequent Towing
Products), 357 NLRB 516, 519 (2011), review dismissed
sub nom. Richards v. NLRB, 702 F.3d 1010 (7th Cir.
2012); Electrical Workers Local 34, 357 NLRB No. 45,
slip op. at 4 (2011). Because the present case was pend-
ing at the time L-3 Communications was issued, we simi-
larly reject the Charging Party’s request for a make-
whole remedy.
7

The Respondents contend that, because they an-
nounced the rescission of their unlawful policy in the
March/April 2011 edition of the CWA newsletter, it
would be inappropriate to order them to rescind their
unlawful policy and republish a revised lawful policy.
To that end, on October 15, 2012, while this case was
pending at the Board upon exceptions to the judge’s sup-
plemental decision, the Respondents filed a Motion to
Reopen the Record to document these asserted changes.
8

The Board’s usual practice is to defer such questions to
the compliance stage of the proceedings. See, e.g., Bell-

7 Even if retroactive relief were available, the Board extends reme-
dies to individuals not named in the complaint only when the General
Counsel has proven unlawful conduct against a defined and easily
identifiable class of similarly situated employees. See California Saw
& Knife Works, supra, 320 NLRB at 254. No such class exists here
because it is impossible to determine whether employees who failed to
renew their objections intended a continuing objection or simply
changed their minds about remaining objectors. See Electrical Workers
Local 357 (Newtron Heat Trace), 343 NLRB 1486, 1488 (2004) (de-
clining to award make-whole relief to unnamed discriminatees where
the determination would depend primarily on “a putative discrimi-
natee’s state of mind”), review dismissed sub nom. Cieklinski v. NLRB,
224 Fed. Appx. 727 (9th Cir. ), cert. denied 552 U.S. 951 (2007).
The Board has ordered unions to recognize the continuing objector
status of charging parties whose requests for that status were rejected
pursuant to unlawful annual renewal requirements. See Steel Workers
(Cequent Towing Products), supra at 519; L-3 Communications, supra
at 1069. Such a remedy is unnecessary here because the Charging
Party did not request a continuing objection. Accordingly, and absent
make-whole relief, it is unnecessary to decide whether the Respondents
unlawfully enforced the annual renewal requirement as to Charging
Party Ilias.
8 On October 22, 2012, the Charging Party filed an opposition to the
motion, and the Respondents filed a reply on October 24, 2012. On
January 7, 2013, the Acting General Counsel filed an opposition to the
Respondents’ motions to reopen. On January 8, 2013, the Respondents
filed a Motion to Strike the Acting General Counsel’s opposition, the
Acting General Counsel filed a response on January 9, 2013, and the
Respondents filed a reply on January 10, 2013. On February 26, 2013,
the Board, by order of its Associate Executive Secretary, denied the
Respondent’s Motion to Strike.
On October 29, 2012, the Respondents filed a second Motion to Re-
open the Record to show that on October 15, 2012, they sent a check to
the Charging Party for the difference, plus interest, between the amount
of agency fees she paid and the reduced amounts paid by Beck objec-
tors during the same time period. On November 8, 2012, the Charging
Party filed an opposition to the motion, and the Respondents filed a
reply on November 9, 2012. We deny the Respondents’ motion be-
cause make-whole relief is inapposite here; the evidence proffered by
the Charging Party is therefore irrelevant.
1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
south Telecommunications, Inc., 346 NLRB 637, 637
(2006) (leaving to compliance the effect of alleged modi-
fications to an unlawful policy); Douglas Autotech, Case
07–CA–051428, 2011 WL 6936385 at *2 fn. 5 (Dec. 30,
2011) (leaving to compliance the effect of the parties’
posthearing negotiations on the respondent’s reinstate-
ment and make-whole obligations). We accordingly de-
ny the Respondents’ Motion to Reopen the Record,
without prejudice to the Respondents’ ability to raise in
the compliance proceedings all questions concerning the
effect, if any, of the Respondents’ asserted policy revi-
sion on their remedial obligations.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondents, Com-
munications Workers of America, Washington, D.C., and
Communications Workers of America, Local 4309,
Cleveland, Ohio, their officers, agents, and representa-
tives, shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 2(c).
“(c) Within 14 days after service by the Region, post at
its union office in Cleveland, Ohio, copies of the at-
tached notice marked “Appendix.”
2
Copies of the notice,
on forms provided by the Regional Director for Region
8, after being signed by the Respondents’ authorized
representative, shall be posted by the Respondent Local
4309 and maintained for 60 consecutive days in conspic-
uous places, including all places where notices to em-
ployees and members are customarily posted. In addition
to physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means,
if the Respondent Local 4309 customarily communicates
with its members by such means. Reasonable steps shall
be taken by the Respondent Local 4309 to ensure that the
notices are not altered, defaced, or covered by any other
material.”
2. Substitute the following for paragraph 2(d).
“(d) Within 14 days after service by the Region, deliv-
er to the Regional Director for Region 8 signed copies of
the notice in sufficient number for physical and/or elec-
tronic posting by the Employer, AT&T Teleholdings,
Inc. d/b/a AT&T Midwest and the Ohio Bell Telephone
Company, if willing, in all places or in the same manner
as notices to employees are customarily posted.”

Susan Fernandez, Esq., for the Acting General Counsel.
Theodore E. Meckler, Esq., of Cleveland, Ohio, for the Re-
spondent.
John C. Scully, Esq. (National Right to Work Legal Defense
Foundation), of Springfield, Virginia, for the Charging Par-
ty.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JOHN T. CLARK, Administrative Law Judge. Pursuant to a
charge filed by Sanda Ilias, the Charging Party, on January 17,
2006, and an amended charge filed by her on January 30, 2006,
an amended compliant and notice of hearing was issued by the
Regional Director for Region 8 of the National Labor Relations
Board (the Board), on August 21, 2008. The amended compli-
ant alleges that Communications Workers of America, and
Communications Workers of America, Local 4309 (individual-
ly referred to as Respondent CWA; Respondent Local 4309,
and collectively as Respondents), have been engaging in unfair
labor practices in violation of Section 8(b)(1)(A) of the Nation-
al Labor Relations Act (the Act) by informing employees sub-
ject to a union-security provision that in order to become and
remain a Beck objector, nonmember bargaining unit employees
must renew their objections annually during the month of May,
thereby violating the employees Section 7 rights and Section
8(b)(1)(A) of the Act. The Respondent denies any violation of
the Act.
This case was tried in Cleveland, Ohio, on October 27, 2008,
before Administrative Law Judge Wallace H. Nations. Judge
Nations issued his decision on January 9, 2009. On October
26, 2011, the Board remanded this case to the chief administra-
tive law judge to reassign it to another administrative law judge
because of Judge Nations’ retirement. On October 27, 2011,
Chief Administrative Law Judge Robert A. Giannasi reassigned
this case to me pursuant to the Board’s remand. The parties’
subsequent attempt to settle this matter was unsuccessful.
The remand directs that I consider this case in light of Ma-
chinists Local 2777 (L–3 Communications), 355 NLRB 1062
(2010), and Auto Workers Local 376 (Colt’s Mfg. Co.,), 356
NLRB 1320 (2011). The remand permits the parties to file
supplemental briefs and further orders that I prepare and serve
on the parties a supplemental decision setting forth findings of
fact, conclusions of law, and a recommended Order.
On the entire record and after considering the briefs and sup-
plemental briefs filed by counsel for the Acting General Coun-
sel, the Respondents, and the Charging Party, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
AT&T Teleholdings, Inc. d/b/a/ AT & T Midwest a Dela-
ware corporation and The Ohio Bell Telephone Company, an
Ohio corporation (the Employer), with an office and place of
business in Cleveland, Ohio, has been engaged in providing
communications services. Annually, the Employer, in conduct-
ing its business operations, derives gross revenues in excess of
$100,000. Additionally, the Employer, in conducting its busi-
ness operations at its Cleveland, Ohio facility, purchases and
receives products, goods and materials valued in excess of
$5000 directly from points located outside the State of Ohio.
The Respondent admits, and I find that the Employer has at all
material times been engaged in commerce within the meaning
COMMUNICATION WORKERS OF AMERICA 1139

of Section 2(2), (6), and (7) of the Act. The Respondents also
admit that they have been labor organizations within the mean-
ing of Section 2(5) of the Act.
II. THE PROCEDURAL MATTER
On May 9, 2011, the Respondent’s counsel filed a letter with
the Board’s Executive Secretary urging consideration of actions
taken by the Respondents in light of the Board’s decision in
Machinists Local 2777 (L-3 Communications), above. There is
no response from the Executive Secretary’s Office in the formal
file.
The Board’s remand order only specifies that the parties be
permitted to file supplemental briefs. It does not direct a reo-
pening of the trial and the parties agreed that a reopening was
not necessary. Nor does the remand order permit the admission
of additional evidence. Accordingly, I will only consider only
those matters that are consistent with the Board’s remand order.
See Brown & Root Power & Mfg., 351 NLRB 168, 189 (2007)
(citing Monark Boat Co., 276 NLRB 1143, 1143 fn. 3 (1985),
enfd. 800 F.2d 191 (8th Cir. 1986).
III. ALLEGED UNFAIR LABOR PRACTICE
A. The Stipulations
At the beginning of the trial the parties offered the following
stipulations as Joint Exhibit 1:

1. This stipulation (paragraph no. 1) is being entered simply
to provide background information for the hearing in this
case: Charging Party, Sanda Ilias (Ilias) filed a previous unfair
labor practice charge against Respondents CWA (CWA) and
CWA Local 4309 (Local 4309) on December 13, 2004, which
charge was assigned Case No. 8–CB–10252. Thereafter, the
charge was amended on January 18, 2005 and February 8,
2005. Among other allegations, Ilias alleged that after she re-
signed from membership and objected to paying full dues on
about September 30, 2004, the Respondents continued to
charge her full dues and did not provide her with the infor-
mation that is owed a Beck objector, including a breakdown
of representational and non-representational expenditures.

2. This stipulation (paragraph no. 2) is being entered simply
to provide background information for the hearing in this
case: On July 27, 2005 Frederick J. Calatrello, Regional Di-
rector, Region 8, approved the terms of a bilateral informal
settlement agreement in Case No. 8–CB–10252. Respond-
ents fully complied with the terms of the settlement agree-
ment. In so doing they provided Ilias with post-objection in-
formation including a breakdown of representational and non-
representational expenditures and a check in the amount of
$136.85, reimbursing Ilias for non-representational expendi-
tures for the 2004–2005 fiscal objector years.

3. CWA’s objector year begins on July 1 and ends on June 30
of the following year.

4. CWA is primarily responsible for formulating and admin-
istering Respondent’s Beck policy and practices. These poli-
cy and practices apply to all bargaining unit members repre-
sented by Local 4309 as well as all other CWA Locals.

5. For all years relevant to this proceeding, CWA annually
publishes a notice describing its Beck policy in the
March/April edition of the CWA News, a newsletter that is
routinely sent to bargaining unit employees nationwide. The
notice of its Beck policy, as published in the CWA News, has
remained unchanged since at least 2004, when the charge was
filed in Case No. 8–CB–10252.

6. CWA provides Beck objectors with an advance reduction,
reimbursing the objector for non-representational expendi-
tures during the objector year in which the objection is made.

7. Brenda Mallory (Mallory) held the position of President of
Local 4309 from at least as early as December 1, 2002 to De-
cember 1, 2005. Pam Wynn (Wynn) is currently the Local
President and has held that position since December 1, 2005.
When they held (or in Wynn’s case continues to hold) the of-
fice of President, both Mallory and Wynn were agents of Lo-
cal 4309 within the meaning of Section 2(13) of the National
Labor Relations Act (the Act).
B. Factual Background
The CWA represent about 400,000 private sector employees,
approximately 1500 of which are Beck objectors. Respondent
Local 4309 represent about 700 employees at the AT&T facili-
ties involved in this case. CWA is primarily responsible for
formulating and administering the Respondent’s Beck policy
and practices. These policy and practices apply to all bargain-
ing unit members represented by Local 4309 as well as all other
CWA Locals. “Beck” refers to Communications Workers v.
Beck, 487 U.S. 735 (1988). Helen Gibson is CWA’s adminis-
trator of special programs. One of the special programs that
she is responsible for is the procedures for Beck objectors and
agency fee payers.
Gibson testified that the CWA’s Beck policy requires that
Beck objectors renew their objections on an annual basis. The
CWA objector year begins July 1 and ends June 30 of the fol-
lowing year. In order for an objector to receive an advanced
refund of their dues for the entire objector year the objector
must file their objection during May of each year.
Gibson testified that in order to notify new employees and
members who have resigned and have become agency fee pay-
ers Respondent CWA mails each employee a pamphlet entitled,
“Your rights with respect to union representation, union securi-
ty agreements and agency fee objections.” Respondent CWA
also publishes a notice describing its Beck policy annually in
the March/April edition of the CWA News, a newsletter that is
routinely sent to bargaining unit employees nationwide. The
published notice has remained unchanged since 2004, when
Charging Party Ilias resigned and objected to paying full dues.
Gibson also testified regarding some exceptions to the policy.
CWA will accept objections received in April, objections post-
marked June 1, and objections filed by new hires. Individual
reminders are not sent to current Beck objectors.
Gibson also testified that of the 400,000 private sector repre-
sented employees 13,000 are agency fee payers and about 1500
are agency fee objectors. (Tr. 101.) Gibson estimated that she
receives between 1800 to 2000 letters a year requesting objec-
tor status. (Tr. 76.) She was unaware of the breakdown be-
tween new and renewing objectors. By far the majority of the
1140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
letters arrive during the May window period. Only Beck ob-
jectors have the nonrepresentational portion of their fee in lieu
of dues refunded to them and only they must renew their status
annually. Aside from the foregoing exceptions, CWA’s Beck
policy requires that Beck objectors renew their objector status
annually during the month of May. Failure to do so results in
the employee not being classified as an objector for the next
year and being charged full dues for that year.
Upon receiving a timely objection letter it is read by a CWA
clerical employee. According to Gibson, the employee is look-
ing for key words or phrases, i.e., “object,” “objector,” “pay
reduced dues,” or “don’t want to pay for politics,” in order to
determine that the sender wants to be an objector. If there are
no key words or phrases present then Gibson reads the letter to
see if she can ascertain the writer’s intent. She always errs “on
the side of it being a letter of objection.” (Tr. 77.)
C. Respondent CWA’s Justifications for its Annual
Renewal Requirement
Gibson claims that Respondent CWA must use an annual ob-
jection renewal because the employees who read the objection
letters do not have sufficient judgment to make the distinction
between a “continuing” objector and a “regular” objector. Ac-
cording to Gibson, allowing for continuing objectors would
slow down the process and require Respondent CWA to use
individuals with a higher skill level. (Tr. 78–79, 114.)
Gibson also notes that Respondent CWA has acted in reli-
ance on court decisions, a Board decision, and General Counsel
memorandum, in maintaining its annual renewal requirements.
(Tr. 80–82.)
Gibson also testified that part of the reason for requiring an-
nual renewal is to keep the address list for the objectors up to
date. Although the employer provides the current addresses to
Respondent CWA there is a 4-to 6-week lag time. Gibson
stressed that it was important to have the correct address be-
cause Beck objectors had to be notified of their right to object.
Respondent CWA was also required to send Beck objectors a
rebate check as well as the calculations used to determine the
amount of the check. (Tr. 84, 113–114.)
The Respondents also claim that the annual renewal is used
also as a barometer to indicate locals that have employees who
are unhappy with their union representation. After Respondent
CWA receives the objector letters, that information is forward-
ed to the appropriate local and regional officers to address the
cause of the problem. (Tr. 84–85, 99.)
D. The Charging Party’s Experience with the Respondent’s
Beck Policy and Practices
Charging Party Sanda Ilias is employed by AT&T at its
Cleveland, Ohio facility. She was hired in 1997 as a full-time
customer service representative, and she has remained in that
position for most of her employment. She was a member of
Respondent CWA Local 4309 from 2003 until September 4,
2004. On that date, she sent a letter to Respondent CWA Local
4309 resigning her membership and objecting to paying dues
for nonrepresentational purposes. Ilias pays her dues through
automatic checkoff. Respondent CWA Local 4309 continued
to collect full union dues and Ilias filed an unfair labor practice
charge. That case was settled on July 27, 2005, as the result of
a bilateral informal settlement agreement. Ilias received
$136.85 for nonrepresentational expenditures for the 2004–
2005 objector years as a result of the settlement. In addition to
the refund, the Respondents provided her with a breakdown of
representational and nonrepresentational expenditures for the
2004–2005 objector years.
Respondent CWA does not recognize any bargaining unit
employees in Local 4309 as Beck objectors. Consequently,
Ilias is still paying dues of $30.13, the full amount, every 2
weeks.
Ilias stated that she is no longer receiving the CWA News.
She did testify that she received copies of the CWA News after
May 2004, but they were not read and thus she was unaware of
Respondent CWA’s annual renewal requirement. Ilias also said
that when her objection for the 2004–2005 year was about to
expire in May 2005 she did not receive any notification from
either of the Respondents that she needed to renew her Beck
objection for the 2005–2006 year.
Ilias was uncertain as to whether she had renewed her objec-
tion for the 2005–2006 Beck objector years. She testified that
after she received a second check in April 2006 from Respond-
ent CWA, for $159.34, she thought it was for her original ob-
jection. That was the last refund she received. She has not
received an advance dues refund check for the objector years
2006–2007 or 2007–2008. Gibson testified that the April 2006
check was sent in response to an objection letter Ilias sent dated
January 11, 2006. That letter was not entered into evidence.
The amended charge filed with the Board on January 30, 2006,
clearly references the Respondent’s policy that nonmembers
must file annual objections. (GC Exh. 1(c) at 2.) Similarly, the
letter signed by Gibson and containing a check for $159.34,
makes clear that the Respondent’s policy requires that all objec-
tions for subsequent July through June periods be in writing
and mailed in time to arrive during the preceding May. (R.
Exh. 1.)
E. Respondents’ 10(b) Defense
In their posthearing brief to Judge Nations that the Respond-
ents argue that the Charging Party knew of the Respondents’
annual renewal practice more than 6 months before filling the
charge in this case. In an attempt to prove that contention, the
Respondents attached several documents of factual material to
their brief. On December 12, 2008, the counsel for the General
Counsel filed a motion to strike the attachments as well as all
factual assertions and legal arguments based on them because
they were not placed in evidence during the hearing. Judge
Nations granted the motion in full and concluded that without
the alleged evidence the Respondent’s 10(b) argument must
fail.
Judge Nations also relied on the counsel for the General
Counsel’s assertion that Section 10(b) does not preclude a find-
ing that the annual renewal requirement violates the Act. Judge
Nations’ notes that “[t]he Board has found that the continued
maintenance of a rule is unlawful even though the rule was
enacted outside the 10(b) period; if the rule is found to be un-
lawful on its face or is presumptively unlawful.” Judge Nations
cites Control Services, Inc., 305 NLRB 435 fn. 2, 442 (1991),
COMMUNICATION WORKERS OF AMERICA 1141

enfd. mem. 961 F.2d 1568 (3d Cir. 1992) (continued mainte-
nance of facially unlawful rule originally promulgated outside
10(b) period, not time-barred), as an example of this reasoning
as applied to solicitation policies.. Judge Nations also observed
that the administrative law judge in Auto Workers Local 376
(Colt’s Mfg. Co.), 356 NLRB 1320 (2011), also rejected the
Unions’ 10(b) defense. (Id., slip op. at 10.) Judge Nations did
not have the benefit of the Board’s decision in Colt’s Mfg. Co.,
where the Board noted that “the Unions’ do not pursue that
defense before the Board.” (Id., slip op. at 1321 fn. 7.) It does
not appear that the Respondents have pursued their 10(b) de-
fense in their supplemental brief. In the interest of administra-
tive finality, I am in complete agreement with Judge Nations’
rejection of the Respondents’ 10(b) defense and I adopt it as my
own.
IV. ANALYSIS AND DISCUSSION
Pursuant to the Board’s remand order, I will follow the prin-
ciples set out in the Board’s decision in Machinists Local 2777
(L-3 Communications), 355 NLRB 1062 (2010), as applied in
Auto Workers Local 376 (Colt’s Mfg. Co.), 356 NLRB 1320.
In Machinists Local 2777 (L–3 Communications), the Board
found an annual renewal rule unlawful. In so doing the Board
emphasized that they would evaluate such requirements on a
case-by-case basis to determine “whether the Union has
demonstrated a legitimate justification for an annual renewal
requirement or otherwise minimized the burden it imposes on
potential objectors.” Id. at 1062.
L–3 Communications reaffirmed that the Board applies the
duty-of-fair representation standard in Beck cases. (355 NLRB
1062). A union breaches that duty if its actions affecting em-
ployees whom it represents are “arbitrary, discriminatory, or in
bad faith.” Id. at 1063. An action is arbitrary, in turn, “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’ as to be irrational.” Id., quoting Air-
line Pilots Assn. v. O’Neill, 499 U.S. 65, 67 (1991). As L–3
Communications and Colt’s Mfg., supra at 1063, illustrate, if
the burden imposed on employees by an annual renewal re-
quirement is more than de minimis, the Board evaluates a un-
ion’s proffered justifications for the requirement considered in
the context of the particular Beck procedures involved.
It is clear that the annual renewal requirement here, like that
in L–3 Communications, and unlike that in Colt’s Mfg., impos-
es more than de minimis burden on objectors. In the instant
case, as in L–3 Communications, an objector must remember to
mail a statement of renewed objection to Respondent CWA
each year during a designated 1-month period specified in the
Respondent’s procedure. In this case it is the month of May.
Failure to send a timely renewal results in the loss of opportuni-
ty to receive a dues reduction for 11 months, until the renewal
period recurs. Nor does the Respondent’s Beck procedure in
this case provide the objectors with multiple notices and a re-
minder of the annual renewal requirement, as does the Beck
procedure in Colt’s Mfg.
The Board also found that the fact that an objection could be
filed at any time under the Beck procedure in Colt’s Mfg., was
“[e]qually [as] important” as the notices and the remainder.
The absence of a fixed filing period greatly reduces the conse-
quences of a failure to renew. Unlike the instant case and L–3
Communications, an employee subject to the annual renewal
procedure set forth in Colt’s Mfg., could regain objector status
by filing an objection as soon as the objector learned of the
omission. Thus, an objector who acts promptly would only
have to pay full dues for a brief period. Objectors who miss the
filing during the limited window period in L–3 Communica-
tions and the Respondent’s procedure are required to pay full
dues for another 11 months. Moreover, under procedure used
in Colt’s Mfg., an objector who fails to renew on time, prompt-
ly receives a remainder of the need to act in order to regain
objector status. That procedure stands in stark contrast to a
once-a-year notice published in the house magazine—the
method used by the respondents in L–3 Communications and
the Respondents in the instant case.
There is one aspect of the Respondents’ objection procedure
that appears to differ from that in L–3 Communications. After
an objector files a timely objection or renewal, Respondent
CWA provides the objector with an advance reduction, reim-
bursing the objector for nonrepresentational expenditures dur-
ing the objector year in which the objection is made.
Based on the foregoing, I find that the Respondents have not
implemented any procedures to minimize the burden imposed
on Beck objectors similar to those in Colt’s Mfg. Thus, it is
necessary to weigh the Respondents’ proffered justifications for
the requirement. Machinists Local 2777 (L-3 Communica-
tions), 355 NLRB at 1062.
Most of the justifications argued by the Respondents in de-
fense of its requirement were rejected in L–3 Communications.
The Respondents argue, as did the unions in L–3 Communica-
tions, that the annual renewal was the best way for the Re-
spondents to obtain the current addresses of each objector. The
employers electronically send Respondent CWA a monthly list
of the dues paid by the employees along with the employees’
addresses. Gibson testified that after she gets the list she veri-
fies it with the Locals. She states that she checks with the Lo-
cals because the computerized list that comes from the employ-
ers takes 4 to 6 weeks to get to Respondent CWA’s offices in
the District of Columbia. The Respondent’s counsel solicited
the following testimony from Gibson regarding the lists provid-
ed by the employers:

Q. Have you come to learn that that’s (the list) not al-
ways up-to-date and accurate?
A. That’s correct.
Q. Okay. What have you found, from practice, is the
most direct and accurate way of getting addresses, mailing
addresses of bargaining unit members?
A. When we hear from them directly, with their home
address on the letter or envelope. [Tr. 83.]

I do not find Gibson’s generalized testimony persuasive.
The Respondents adduced no evidence as to the frequency of
returned mail that was sent to the wrong address because the
objector failed to notify the Respondents of the correct address.
The Respondents also did not explain why an address that was
on an objection letter mailed in May would be considered more
reliable than an address from an employer list compiled in June.
1142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Nor did the Respondents offer any reason why an electronically
mailed computerized list would take 4 to 6 weeks to arrive at its
destination. In L–3 Communications, the Board noted that the
respondents, “as the joint exclusive representative of all em-
ployees in the bargaining unit, have a right to obtain the ad-
dresses of all unit employees from their employer.” 355 NLRB
1064. (Citation omitted.) Moreover, “[a]n employer must re-
spond to the information request in a timely manner.” E.g.,
Amersig Graphics, Inc., 334 NLRB 880, 885 (2000). The justi-
fication also appears to be counterintuitive. A result of filing a
timely Beck objection is to receive a rebate check in the mail.
That said, it would appear that objectors would make certain
that the Respondents had the correct address. Based on the
foregoing, I find that this justification does not provide a legit-
imate rationale for the Respondent’s annual Beck renewal re-
quirements. See 355 NLRB at 1062.
The Respondents also offer as a justification for their annual
renewal requirement the fact that the Respondents would need
to use employees with better judgment than the current em-
ployees who read the objection letters. Gibson claims this is
necessary so that the employees are able to make the distinction
between a “continuing” objector and a “regular” objector.
Thus, according to Gibson, allowing for continuing objectors
“would slow down the process” (Tr. 78), or “take more time”
(Tr. 114), and require Respondent CWA to employ individuals
with higher skill levels. To the extent that Respondents in their
brief characterize this testimony as an “administrative burden”
that would “significantly” increase the need to “far more care-
fully scrutinize the objection letters.” (R. Br. at 24.) I reject
that characterization. I also note that Gibson admitted that if all
objectors were viewed as continuing objectors it would require
less clerical help. (Tr. 100.) Once again I find the evidence to
support this justification to be general and unconvincing.
The Respondents have made no attempt to minimize the bur-
den on employees by providing them with clear instructions
concerning what they need to say to object and, alternatively, to
make a continuing objection. As an example, the Board offers
an annual notice presented to employees covered by the Rail-
way Labor Act. The notice informs the employees that they
had “the following choice: (1) they may follow the annual re-
newal procedure, or (2) they may indicate in their [objection]
letter . . . that they want their objection to be treated as continu-
ing in nature.” Id. at 1067 and fn. 28.
Gbson testified that the employees assigned to read the ob-
jection letters are trained to look for key words and phrases,
such as “objector” and “pay reduced dues.” The Respondents
offer no explanation why adding a few other key words or
phrases such as “continue,” “continuing,” or “year-to-year,”
would not enable the readers of the letters to determine the
intentions of the employees.
It is also significant that in L–3 Communications, the Board
made clear that:

Our holding today does not suggest that the Unions would
have violated their duty of fair representation in this case if
they had limited employees’ options to three: making no ob-
jection, making a simple objection (which would be under-
stood as continuing until the next annual notice), and making
a continuing objection. The duty of fair representation does
not require unions to honor objections for any period specified
by a nonmember. Nor does the duty require that unions as-
sume that a nonmember desires an objection to be continuing
if, after being given clear instructions concerning how to ex-
press a continuing objection, the employee does not do so.
[Id. at 1067. (Citation omitted.)]

In this case, the Charging Party never requested a continuing
objection, nor did the Respondents ever make reference to a
continuing objection. Moreover, Gibson acknowledged that
Respondent CWA did not recognize continuing objections.
(Tr. 91.) Based on the foregoing, I find that this justification
does not provide a legitimate rationale for the Respondent’s
annual Beck renewal requirements.
Gibson testified that the use of the annual renewal provides
“an excellent barometer of unhappiness.” The annual renewal
“points out pockets of decent.” (Tr. 84.) Gibson also agreed
that the use of continuing objections would not interfere in the
functioning of the “barometer.” Accordingly, this justification
does not provide a legitimate rationale for the Respondent’s
annual Beck renewal requirements.
The Respondents here, as did the unions in L–3 Communica-
tions, contend that they were justified in relying on prior court
and Board cases as well as GC Memorandum in maintaining
the annual renewal requirement. Regarding the Respondents
reliance on California Saw & Knife Works, 320 NLRB 224
(1995), the Board observed that the General Counsel’s choice
not to argue that an annual renewal requirement was unlawful
did not insulate such requirements from subsequent Board scru-
tiny. The Board went on to state that the court cases relied on
by the Unions, to which the Board was not a party, did not pre-
clude the Board’s independent assessment of the issue present-
ed. The Board emphasized that it had the primary responsibil-
ity for establishing national labor policy. NLRB v. Curtin
Matheson Scientific, Inc., 494 U.S. 775, 786 (1990) (footnote
omitted). The foregoing is fully applicable to the instant case
and I therefore find that this justification does not provide a
legitimate rationale for the Respondent’s annual Beck renewal
requirement.
For all the foregoing reasons, I find that the Respondents
have failed to establish a reasonable basis for the annual Beck
requirement. Because the requirement is arbitrary, it violates
the Respondents duty of fair representation and Section
8(b)(1)(A) of the Act.
Although in this case there was no request for a continuing
objection the following synopsis is set forth in L–3 Communi-
cations and would be of guidance for the parties going forward:

[A]bsent a more compelling rationale or other procedures that
minimize the burden of annual objection not present in this
case, a union violates its duty of fair representation if it de-
clines to honor nonmember employees’ express, written
statement to the union that they object on a continuing basis to
supporting union activities not related to collective bargaining
and contract administration. If a union provides a written ex-
planation of the consequences of submitting a simple objec-
tion in contrast to a continuing objection, the union does not
violate its duty by honoring simple objections for only 1 year.
COMMUNICATION WORKERS OF AMERICA 1143

In addition, a union need not honor requests to object for peri-
ods of time other than 1 year and continuously.

L–3 Communications, supra at 1069.
In L–3 Communications, the Board granted prospective re-
medial reliefs because the unions could reasonable have be-
lieved that their requirement was lawful in light of court ap-
proval of the requirement. Id. at 1069. Thus, the Board or-
dered the unions to rescind their annual renewal requirement,
but did not order make-whole relief, and directed the unions to
recognize the charging party only—not all Beck objectors rep-
resented by the unions nationwide—as a continuing objector.
Accordingly, the counsel for the Acting General Counsel and
the Charging Party’s request for a make-whole remedy is in-
consistent with L–3 Communications, where the Board specifi-
cally declined to give retroactive application to its ruling. Simi-
larly, the Charging Party’s request that remedial relief be ex-
tended to all nonmembers represented by the Respondents ex-
ceeds the limited prospective relief granted in L–3 Communica-
tions.
CONCLUSIONS OF LAW
1. AT&T Teleholdings, Inc. d/b/a/ AT&T Midwest and the
Ohio Bell Telephone Company is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Communications Workers of America and Communica-
tions Workers of America, Local 4309 are labor organizations
within the meaning of Section 2(5) of the Act.
3. By requiring Beck objectors to renew their objections on
an annual basis under the Respondents existing annual renewal
procedure, the Respondents have violated Section 8(b)(1)(A) of
the Act.
REMEDY
Having found that the Respondents have engaged in certain
unfair labor practices, I shall order them to cease and desist
therefrom and to take certain affirmative action designed to
effectuate the policies of the Act. I shall order that the Re-
spondents rescind their requirement that Beck objectors renew
their objections on an annual basis. I shall also order that the
Respondents notify its existing Beck objectors that the existing
annual renewal requirement for objections to payment of dues
and fees for nonrepresentational activities has been rescinded,
and publish a revised policy in the Respondents’ magazine.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended1
ORDER
The Respondents, Communications Workers of America and
Communications Workers of America, Local 4309, Cleveland,
Ohio, their officers, agents, and representatives, shall
1. Cease and desist from

1 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 waived for all pur-
poses.
(a) Requiring nonmember employees, who are covered by a
collective-bargaining agreement containing a union-security
clause and who object to the payment of dues and fees for non-
representational activities, to renew their objections on an an-
nual basis.
(b) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the requirement that objecting nonmember em-
ployees renew their objection on an annual basis.
(b) Notify nonmember employees who are subject to a un-
ion-security clause, that the existing annual renewal require-
ment for objections to payment of dues and fees for nonrepre-
sentational activities has been rescinded, and publish a revised
policy in the CWA News.
(c) Within 14 days after service by the Region, post at its un-
ion office in Cleveland, Ohio, copies of the attached notice
marked “Appendix.”2 Copies of the notice, on forms provided
by the Regional Director for Region 8, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent Local 4309 and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees and members are customarily posted. In addition to
physical posting of paper notices, the notices shall be distribut-
ed electronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if Respondent Lo-
cal 4309 customarily communicates with its employees and
members by such means. Reasonable steps shall be taken by
the Respondent Local 4309 to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) Sign and return to the Regional Director sufficient copies
of the notice for physical and/or electronic posting by AT&T
Teleholdings, Inc. d/b/a/ AT&T Midwest and the Ohio Bell
Telephone Company, if willing, at all places or in the same
manner as notices to employees are customarily posted.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondents have taken to comply.

APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.

FEDERAL LAW GIVES YOU THE RIGHT TO

2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Form, join, or assist a union
Choose representatives to bargain on your behalf with
your employer
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT require nonmember employees, who are cov-
ered by a collective-bargaining agreement containing a union-
security clause and who object to the payment of dues and fees
for nonrepresentational activities, to renew their objections on
an annual basis.
WE WILL NOT in any like or related manner restrain or coerce
you in the exercise of the rights guaranteed you by Section 7 of
the Act.
WE WILL rescind the requirement that objecting nonmember
employees renew their objection on an annual basis.
WE WILL notify nonmember employees who are subject to a
union-security clause, that the existing annual renewal require-
ment for objections to payment of dues and fees for nonrepre-
sentational activities has been rescinded, and publish a revised
policy in the CWA News.
COMMUNICATIONS WORKERS OF AMERICA AND
COMMUNICATIONS WORKERS OF AMERICA, LOCAL
4309