Teamsters Local 75, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehous

National Labor Relations Board - Board Decisions

Mar 21, 2017

365 NLRB No. 48 (N.L.R.B. 2017)

365 NLRB No. 48
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Teamsters Local 75, affiliated with the International
Brotherhood of Teamsters, AFL-CIO (Schreiber
Foods) and Sherry Lee Pirlott and David E. Pir-
lott. Case 30–CB–003077
March 21, 2017
SECOND SUPPLEMENTAL DECISION
AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
This case, on remand from the United States Court of
Appeals for the District of Columbia Circuit, involves
two Charging Party employees who exercised their rights
under the Supreme Court’s decision in Communications
Workers of America v. Beck, 487 U. S. 735 (1988)
(“Beck”), by filing objections to the payment of dues that
finance activities not germane to the Respondent Union’s
duties as their collective-bargaining representative. The
issue here is whether the Respondent violated Section
8(b)(1)(A) of the Act by failing to furnish the Charging
Parties, as Beck objectors, with sufficient information to
enable them to determine whether the Respondent
properly reduced their dues to an amount that financed
only those activities that are germane to the Respond-
ent’s duties as their bargaining representative.
In its decision in this case, Teamsters Local 75
(Schreiber Foods), 329 NLRB 28 (1999) (Schreiber I),
the Board held that the Respondent provided Charging
Parties David E. and Shirley Lee Pirlott with sufficient
financial information for years 1988 and 1989 to enable
them to determine whether to challenge the Respondent’s
dues reduction calculations. Accordingly, the Board
dismissed this 8(b)(1)(A) complaint allegation. The
Board, however, remanded to the judge for further pro-
ceedings a separate allegation that the Respondent violat-
ed Section 8(b)(1)(A) by charging the Pirlotts for Re-
spondent activities outside the bargaining unit, including
organizing expenses. In Teamsters Local 75 (Schreiber
Foods), 349 NLRB 77 (2007) (Schreiber II), the Board
addressed the remanded allegation and found that the
Respondent violated Section 8(b)(1)(A) by charging the
Pirlotts for some of its organizing expenses. The Pirlotts
filed a petition in the United States Court of Appeals for
the District of Columbia Circuit seeking review of the
Board’s dismissal of the financial disclosure allegation in
Schreiber I; the Respondent petitioned for review of the
organizing expenses violation found in Schreiber II; and
the Board cross-applied for enforcement of the violation
found in Schreiber II.
On April 15, 2008, the court issued a decision in Pir-
lott v. NLRB, 522 F.3d 423, enforcing the Board’s deci-
sion in Schreiber II. With respect to Schreiber I, the
court noted that the parties agreed that the Board’s deci-
sion on the question of whether the Respondent’s finan-
cial disclosures were adequate to enable the Pirlotts to
determine whether the Respondent had properly reduced
their dues should be vacated in light of the court’s deci-
sion on a similar issue in Penrod v. NLRB, 203 F.3d 41
(D.C. Cir. 2000). Id. at 432. In accord with the parties’
agreement, the court vacated this aspect of the Board’s
order in Schreiber I and remanded the case to the Board
for reconsideration in light of Penrod. Id. at 437.
On August 27, 2015, the Board advised the parties that
it had accepted the court’s remand and invited them to
file statements of position with respect to the remanded
issue.1 The General Counsel, the Pirlotts, and the Re-
spondent filed statements of position.
DISCUSSION
The Supreme Court in Beck ruled that a union may not,
over the objection of employees obligated to pay dues
pursuant to a contractual union-security clause, expend
funds collected from the objectors on activities unrelated
to collective bargaining, contract administration, or
grievance adjustment. 487 U.S. at 752–754. To comply
with Beck and its duty-of-fair-representation framework,
the Board in California Saw & Knife Works2 set forth a
three-stage procedure a union must follow to inform em-
ployees how Beck objections will be processed. First is
the preobjection stage when the union must inform em-
ployees, before it can collect dues and fees from them
under a union-security clause, that they have the right to
refrain from having their dues spent on nonrepresenta-
tional activities and that their dues will be reduced ac-
cordingly if they file an objection. Employees must be
given sufficient information at this stage to “enable
[them] to intelligently decide whether to object.” 320
NLRB at 233. Stage 2 is the postobjection period and
involves unit employees who have filed objections. The
union must inform objectors at this stage of the percent-
age reduction of their dues and fees, the basis for the
calculation, and their right to challenge the figures. Id.
It must also provide a sufficient listing of its “major cat-
_______________________
1 Following the court’s remand, the case was in settlement discus-
sions for several years, during which, according to the Respondent,
Teamsters Local 75 merged with Teamsters Local 662. However, the
parties were unable to resolve the specific allegations in Schreiber I.
2 320 NLRB 224 (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).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
egories” of expenditures, designating which ones it
deems chargeable and nonchargeable, so that the objec-
tors can decide whether to challenge the union’s dues-
reduction calculations. Id. at 239–240; see also Office
Employees Local 29 (Dameron Hospital Assn.), 331
NLRB 48, 49 (2000). Objectors who disagree with or
question the stage 2 information and file a challenge pro-
ceed to stage 3, “where the union will bear the burden of
proving that [its] expenditures are chargeable to the de-
gree asserted.” CWA Local 9403 (Pacific Bell), 322
NLRB 142, 144 (1996), enfd. sub nom. Finnerty v.
NLRB, 113 F.3d 1288 (D.C. Cir. 1997), cert. denied 552
U.S. 995 (1997).
The allegation in this case arises at stage 2. As dis-
cussed in Schreiber I, 329 NLRB at 28, the Pirlotts were
employees of Schreiber Foods and members of a produc-
tion and maintenance bargaining unit represented by the
Respondent. On September 20, 1989, the Pirlotts filed
Beck objections with the Respondent and received an
October 19 written response stating that their dues would
be reduced by 1.1 percent, in accordance with the Re-
spondent’s 1988 audit that itemized its expenditures and
identified which were for activities the Respondent
deemed nonrepresentational. Attached to the letter was a
one-page schedule of the Respondent’s 1988 total ex-
penditures prepared by the auditor, which, as set forth at
329 NLRB at 45, was broken down into 14 categories.
For each expenditure category, the Respondent identified
the amount that it considered nonrepresentational and
thus “nonchargeable” to the Pirlott objectors. The
breakdown specified 11 categories as totally chargeable,
one category as totally nonchargeable, and 2 categories,
including a “per capita tax” the Respondent paid to affili-
ated entities,3 as partially chargeable and partially non-
chargeable. In addition, the letter informed the Pirlotts
of the Respondent’s procedure for challenging its
chargeability determinations. Following an audit of its
1989 expenditures, the Respondent reduced the Pirlotts’
dues by 3.2 percent as reflected in a similar financial
statement provided to them showing the amounts spent
that year on activities determined to be chargeable and
nonchargeable.
The Pirlotts rejected the Respondent’s financial disclo-
sure statements as “woefully inadequate,” asserting that
they failed to explain how the Respondent “arrived at
[its] figures” or to provide any information about its
three affiliates. The judge agreed, finding that the 1988
and 1989 statements did not disclose any details beyond
_______________________
3 The per capita tax is the amount that the Respondent pays, for each
of its members, to three affiliated entities—the International Brother-
hood of Teamsters (International), the Central Conference of Teamsters
(Conference), and the Wisconsin Joint Council 39 (Joint Council).
the major categories of union expenditures and thus
failed to provide the Pirlotts with sufficient information
to enable them to make an informed choice as to whether
to file a challenge. 329 NLRB at 47. With respect to the
per capita tax category, the judge ruled that the Respond-
ent should have separated it “by the recipient of the tax
and how the Respondent determined [the amount that]
was nonchargeable.” Accordingly, the judge found that
the Respondent violated Section 8(b)(1)(A) and (2) of the
Act. Id.
The Schreiber I Board reversed, finding that the Re-
spondent was only required to provide the Pirlotts with
information sufficient to enable them to determine
whether to challenge the Respondent’s figures, and that
what the Respondent provided them was “clearly suffi-
cient to enable” them to make that determination. Id. at
30. The Board held that because the Respondent’s dis-
closures comported with California Saw’s requirement to
disclose “major category” information, including the per
capita tax expenditure disclosure found sufficient in
Teamsters Local 166 (Dyncorp Support Services), 327
NLRB 950, 953–954 (1999) (Dyncorp I), the Respondent
satisfied its duty of fair representation to the Pirlotts. Id.
at 30–31.
The District of Columbia Circuit disagreed. Following
the issuance of Schreiber I, the court had granted review
of Dyncorp I and rejected the Board’s position regarding
the adequacy of stage 2 information. The court held in
Penrod v. NLRB, supra (the title of Dyncorp I on review)
that it was not enough for the union in that case to simply
provide objectors with an audited schedule of its major
categories of expenditures and the amounts and percent-
ages of each category that it deemed chargeable and non-
chargeable. Rather, for objectors to make an informed
decision on whether to challenge the union’s figures, the
court held that the union was required to provide the ob-
jectors with a “detailed explanation of how it calculated
the allocation of its expenditures.” Penrod, supra, 203
F.3d at 46 (emphasis added). The Penrod court reached
the same conclusion with respect to the per capita taxes
that the union in that case submitted to affiliated entities.
Having disclosed that over 90 percent of the dues paid to
affiliates were chargeable to objectors, the court held that
the union was required to “explain how its affiliates used
the money.” Id. at 47. The court remanded Dyncorp I to
the Board for further proceedings consistent with its de-
cision.
Following the remand, the Board adopted the Penrod
court’s decision as the law of the case. Specifically, the
Board found that the union violated Section 8(b)(1)(A)
by failing to provide the objectors with “adequate infor-
mation concerning its expenditures and those of its affili-
TEAMSTERS LOCAL 75 (SCHREIBER FOODS) 3
ates with which it shared the money from dues and fees.”
Teamsters Local 166 (Dyncorp Support Services), 333
NLRB 1145 (2001) (Dyncorp II).
In light of its intervening decision in Penrod, the Dis-
trict of Columbia Circuit agreed with the parties here that
it was appropriate to vacate the Board’s order in
Schreiber I with respect to the stage 2 disclosure issue so
that the Board could reconsider its position on remand.4
Pirlott v. NLRB, 522 F.3d at 432. Significantly, prior to
the remand of Schreiber I the Board had done just that in
Teamsters Local 579 (Chambers & Owen), 350 NLRB
1166 (2007), which issued after Penrod. In Chambers &
Owen the issue was whether the union was required to
provide a Beck objector “with information concerning its
affiliates’ activities and the extent to which those activi-
ties were chargeable or nonchargeable prior to [the ob-
jector] filing a challenge to the [u]nion’s reduced dues
and fees calculation” ( i.e., at stage 2 rather than stage 3).
Id. at 1168. The Board acknowledged that “under cur-
rent Board law, a union that pays per capita taxes to its
affiliates is not required at the second stage to provide
Beck objectors with information pertaining to how its
affiliates determined the chargeability to the objectors of
the per capita taxes that the affiliates received and spent.”
Id. Agreeing with Penrod, however, the Board stated in
Chambers & Owen that “[w]e now hold that this affiliate
information must be furnished to a Beck objector at the
second stage so that he or she can determine whether to
file a challenge,” id. (emphasis in original), and found
that the union’s failure to provide such information vio-
lated Section 8(b)(1)(A) and its duty of fair representa-
tion. Id. at 1169, 1171.5
We reach the same conclusion here, not only with re-
spect to the per capita tax expenditure disclosures of the
Respondent’s affiliates, which the Respondent has failed
to set forth in its disclosure, but also with respect to the
Pirlott court’s remand for the Board to consider the ade-
quacy of the Respondent’s disclosure of its own dues
_______________________
4 Specifically, on remand, the parties argued as follows. The Gen-
eral Counsel took no position on the issue. The Pirlotts argue that the
Board should apply Penrod to find that the Respondent’s financial
disclosures were inadequate and order restitution for excessive amounts
of dues seized from them from 1989 to the present. The Respondent
argues, as a procedural matter, that the remanded issue should be dis-
missed due to laches, asserting that the “Board and Subregion’s unex-
plained delays throughout this quarter century have made it impossible
for the Union to adequately protect its interests.” In this regard, the
Respondent notes that having merged with Teamsters Local 662, it no
longer exists and relevant documents and files are missing or have been
destroyed. With respect to the merits, the Respondent urges the Board
to reject Penrod as erroneously decided and affirm its decision that the
financial information provided to the Pirlotts was adequate.
5 To the extent that Dyncorp I and Schreiber I held to the contrary,
the Board overruled both cases. Id. at 1170–1171.
expenditures. As the Board explained in Chambers &
Owen, “[j]ust as the [u]nion’s providing [the objector]
with the percentage figures reflecting its determinations
of its own total chargeable and nonchargeable expendi-
tures would have been insufficient, providing the same
general percentage figures for its affiliates, without
providing supporting information about the purposes for
which the assertedly chargeable amount will be expend-
ed, is also inadequate.” Id. at 1170 (emphasis added).
Indeed, in Chambers & Owen, the Board insisted upon,
in addition to a listing of affiliates’ major spending cate-
gories, “a detailed explanation of how the affiliates' ex-
pense allocations were calculated.” Id. It logically fol-
lows that if a union must provide a detailed account of
how its affiliates’ allocations were calculated that is suf-
ficient to allow objectors to determine whether to file a
challenge, it must also do so with respect to its own cate-
gories of expenditures. Notably, many of the broad ex-
penditure categories within the Respondent’s disclosure
suffer from facially similar problems as those found by
the court in Penrod as to whether they provide a suffi-
cient basis for objectors to decide whether to challenge
their dues reduction. See 203 F.3d at 45–46; see also
Dyncorp II, supra at 1146 (outlining how a union may
comply with Penrod’s requirements for detailing its ex-
penditures).
Accordingly, consistent with Chambers & Owen and
the Pirlott court’s instructions on remand, we find that
the Respondent violated Section 8(b)(1)(A) by failing to
provide the Pirlotts with sufficient information as to how
it determined the chargeability and nonchargeability of
its own dues expenditures and those of its affiliated enti-
ties with respect to the per capita dues transferred to
them.6
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 4 set
forth in Schreiber I, 329 NLRB at 33, and renumber the
subsequent Conclusion of Law:
“4. The Respondent violated Section 8(b)(1)(A) by
failing to inform objecting nonmember unit employees
_______________________
6 We do not find, as the judge did in Schreiber I, that the Respondent
also violated Sec. 8(b)(2). There is no evidence that the Respondent
caused or attempted to cause Schreiber Foods to discriminate against an
employee in violation of Sec. 8(a)(3), as prohibited by Sec. 8(b)(2).
We reject the Respondent’s laches defense. The Board and the
courts have long held that the defense of laches does not lie against the
Board as an agency of the United States Government. Entergy Missis-
sippi, Inc., 361 NLRB No. 89, slip op. at 2 fn. 5 (2014) (citing NLRB v.
J.H. Rutter-Rex Mfg. Co., 396 U.S. 258 (1969)). Further, the delay in
this proceeding was due in large part to the 8-year period between 2000
and 2008 when the Pirlotts’ petition for review in Schreiber I was pend-
ing before the court, and the several years of settlement discussions
between the parties that took place after the court’s 2008 remand.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
under Communications Workers v. Beck, 487 U.S. 735
(1988), from whom it sought to collect dues and fees, of
the following information at the objection stage: the
major categories of its expenditures, the percentage of
each category that it considers chargeable and non-
chargeable, and a detailed explanation of how it calcu-
lates its allocation of expenditures; the names of its affil-
iates and other entities with which it shares income from
dues and fees, the amounts of income shared, the major
categories of expenditures of each affiliate and other en-
tity and the percentages of each category those affiliates
and other entities consider chargeable and nonchargea-
ble, and a detailed explanation of how the affiliates and
other entities calculated their expenditure allocation.”
AMENDED REMEDY
Having found that the Respondent violated Section
8(b)(1)(A), we shall order it to cease and desist and to
provide Charging Parties Sherry Lee Pirlott and David E.
Pirlott with the following sufficiently verified7 infor-
mation for 1988 and 1989: the major categories of its
expenditures, the percentage of each category that it con-
siders chargeable and nonchargeable, and a detailed ex-
planation of how it calculates its allocation of expendi-
tures; the names of its affiliates and other entities with
which it shares income from dues and fees, the amounts
of income shared, the major categories of expenditures of
each affiliate and other entity and the percentages of each
category those affiliates and other entities consider
chargeable and nonchargeable, and a detailed explanation
of how the affiliates and other entities calculated their
expenditure allocations.8
SUPPLEMENTAL ORDER
The National Labor Relations Board orders that the
Respondent, Teamsters Local 75, affiliated with the In-
ternational Brotherhood of Teamsters, AFL–CIO, Green
_______________________
7 No allegation was made that the information initially provided by
the Respondent was not properly verified. See United Food and Com-
mercial Workers Union Local 4 (Safeway, Inc.), 363 NLRB No. 127
(2016), as modified by 365 NLRB No. 32 (2017); and Television Art-
ists AFTRA (KGW Radio), 327 NLRB 474 (1999), reconsideration
denied 327 NLRB 802 (1999), petition for review dismissed 1999 WL
325508 (D.C. Cir. 1999).
8 The Respondent asserts that it no longer has the records necessary
to provide this information. We leave to compliance the determination
of what information the Respondent has and must provide. To the
extent that the Respondent contends that its merger with Teamsters
Local 662 has extinguished its remedial obligations, we reject that
contention. See Sheet Metal Workers Local 75 (Owl Contractors), 290
NLRB 381, 385–387 (1988).
Because the complaint allegation was confined to the years 1988 and
1989, we reject the Pirlotts’ request for remedial relief extending be-
yond this period.
Bay, Wisconsin, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Failing to inform objecting nonmember unit em-
ployees under Communications Workers v. Beck, 487
U.S. 735 (1988), from whom it seeks to collect dues and
fees, of the following information at the objection stage:
the major categories of its expenditures, the percentage
of each category that it considers chargeable and non-
chargeable, and a detailed explanation of how it calcu-
lates its allocation of expenditures; the names of its affil-
iates and other entities with which it shares income from
dues and fees, the amounts of income shared, the major
categories of expenditures of each affiliate and other en-
tity and the percentages of each category those affiliates
and other entities consider chargeable and nonchargea-
ble, and a detailed explanation of how the affiliates and
other entities calculated their expenditure allocations.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Provide the Pirlotts with the following sufficiently
verified information for 1988 and 1989: the major cate-
gories of its expenditures, the percentage of each catego-
ry that it considered chargeable and nonchargeable, and a
detailed explanation of how it calculated its allocation of
expenditures; the names of its affiliates and other entities
with which it shared income from dues and fees, the
amounts of income shared, the major categories of ex-
penditures of each affiliate and other entity and the per-
centages of each category those affiliates and other enti-
ties considered chargeable and nonchargeable, and a de-
tailed explanation of how the affiliates and other entities
calculated their expenditure allocations.
(b) Within 14 days after service by the Region, post at
its offices in Green Bay, Wisconsin, copies of the at-
tached notice marked “Appendix.”9 Copies of the notice,
on forms provided by the Regional Director for Region
18, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, including all places where notices to members are
customarily posted. In addition to physical posting of
paper notices, the notices shall be distributed electroni-
cally, such as by email, posting on an internet site, and/or
_______________________
9 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.”
TEAMSTERS LOCAL 75 (SCHREIBER FOODS) 5
other electronic means, if the Respondent customarily
communicates with employees whom it represents by
such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Sign and return to the Regional Director for Re-
gion 18 sufficient copies of the notice for posting by
Schreiber Foods, if willing, at all places at its Green Bay,
Wisconsin facility where notices to employees are cus-
tomarily posted.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 18 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. March 21, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO MEMBERS AND EMPLOYEES
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 notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail to inform objecting nonmember unit
employees under Communications Workers v. Beck, 487
U.S. 735 (1988), from whom we seek to collect dues and
fees, of the following information at the objection stage:
the major categories of our expenditures, the percentage
of each category that we consider chargeable and non-
chargeable, and a detailed explanation of how we calcu-
late our allocation of expenditures; the names of affiliates
and other entities with which we share income from dues
and fees, the amounts of income shared, the major cate-
gories of expenditures of each affiliate and other entity
and the percentages of each category those affiliates and
other entities consider chargeable and nonchargeable,
and a detailed explanation of how the affiliates and other
entities calculate their expenditure allocations.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above.
WE WILL provide Sherry Lee Pirlott and David E. Pir-
lott with the following information for 1988 and 1989:
the major categories of our expenditures, the percentage
of each category that we considered chargeable and non-
chargeable, and a detailed explanation of how we calcu-
lated the allocation of expenditures; the names of affili-
ates and other entities with which we shared income
from dues and fees, the amounts of income shared, the
major categories of expenditures of each affiliate and
other entity and the percentages of each category those
affiliates and other entities considered chargeable and
nonchargeable, and a detailed explanation of how the
affiliates and other entities calculated their expenditure
allocations.
TEAMSTERS LOCAL 75, AFFILIATED
WITH THE INTERNATIONAL
BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, AFL–CIO
The Board’s decision can be found at
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below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.