Mohat v. National Labor Relations Board

1 F. App'x 258
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 8, 2000
DocketNo. 99-6188
StatusPublished

This text of 1 F. App'x 258 (Mohat v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mohat v. National Labor Relations Board, 1 F. App'x 258 (6th Cir. 2000).

Opinion

SILER, Circuit Judge.

Petitioner, Robert J. Mohat, appeals the National Labor Relations Board’s decision and order rejecting claims that his employer and union infringed on his § 7 right to refrain from union membership by enforcing an invalid union-security clause and by failing to honor the revocation of his dues-checkoff authorization after he resigned from the union. For the following reasons, we enforce the order in part and remand in part.

BACKGROUND

Since 1981, Mohat’s employer, Polymark Corporation (“Employer”), and Local 795 of the International Union of Electronic, Electrical, Salaried, Machine and Furniture Workers (“Union”) have included a union-security clause in three successive collective-bargaining agreements (“CBAs”) stating:

It shall also be a condition of employment that all employees covered by this Agreement and hired on or after its effective date shall, on the sixty-first calendar day following the beginning of such employment, become and remain members in good standing in the Union.

The CBA also includes a dues-checkoff provision whereby the Employer deducts monthly dues from the employees’ wages for payment to the Union.

After his probationary period, he joined the Union and signed a dues-checkoff authorization assignment in 1986. In 1990, he read a newspaper article regarding the Supreme Court’s decision in Communications Workers of America v. Beck, 487 U.S. 735, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988), and the practice of using members’ fees for political purposes. In a September 1990 letter to the Union’s treasurer, Mohat requested a return of dues used for non-representational purposes and for information on the percentage of dues used exclusively for representation based on Beck. In its reply, the Union stated that Beck did not apply to union members and that non-members could request a reduction in fees during the “window period” as published in the Union’s newsletter.

In November 1990 by letter, Mohat resigned from the Union, objected to the use of his fees for political purposes, and stated his intention to file charges. The Union replied that despite his resignation, he was obligated to pay union dues based on the union-security clause, and he could request a reduction of fees during the April 1991 “window period.” Mohat also sent a letter to Polymark notifying it of his resignation from the union, revoking his dues-checkoff authorization, and stating his intention to file charges with the NLRB. Polymark responded that it would continue to withhold the full membership dues because it [260]*260had not received notice from the Union to reduce them.

In December 1990, Mohat filed unfair labor practice charges against his Employer and the Union with the NLRB. In his September 1992 decision and order, the Administrative Law Judge (ALJ) held that the union security clause was facially valid; the Employer committed an unfair labor practice when it failed to honor Mohat’s dues-checkoff revocation; the Union’s policy to reduce fees for resigned members only during the “window period” violated Mohat’s § 7 rights; and the Union failed to inform Mohat of his Beck rights within a reasonable time. Upon appeal, the NLRB’s September 1999 order upheld the validity of the union-security clause, reversed the finding that the Employer violated Mohat’s rights by continuing payroll deductions, affirmed the ALJ’s decision that the Union violated § 7 when it failed to honor Mohat’s Beck objection upon his resignation, and reversed the finding that the Union failed to give proper notice of Beck rights.

ANALYSIS

“The Board’s legal conclusions are reviewed de novo, but its findings of fact and application of law to fact are subject to the ‘substantial evidence’ standard.” Opportunity Homes, Inc. v. NLRB, 101 F.3d 1515, 1518 (6th Cir.1996) (citing NLRB v. Pentre Electric, Inc., 998 F.2d 363, 368 (6th Cir. 1993)). “Substantial evidence ‘means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Id. (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)).

A. Union Security Clause Validity Claim

Employees have the right to refuse to join a union, and an employer or union that restrains, coerces or discriminates against an employee who exercises this right commits an unfair labor practice. See 29 U.S.C. §§ 157, 158(a)(1), 158(a)(3), 158(b)(1)(A) (also known as §§ 7 and 8 of the NLRA). A union also has a duty of fair representation whereby it must serve the interests of all members of the bargaining unit, and it breaches this duty if its conduct toward an employee is arbitrary, discriminatory, or in bad faith. See 29 U.S.C. § 158(b)(1)(A); see also Marquez v. Screen Actors Guild, Inc. 525 U.S. 33, 44, 119 S.Ct. 292, 142 L.Ed.2d 242 (1998). While union-security clauses can be included in CBAs, they cannot require full union membership and employees retain the right to resign from a union. See 29 U.S.C. § 158(a)(3); see also Marquez, 525 U.S. at 47-48; Pattern Makers’ League v. NLRB, 473 U.S. 95,106,105 S.Ct. 3064, 87 L.Ed.2d 68 (1985). Under such clauses, a union can demand “those fees and dues necessary to ‘performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issue’ ” whether an employee is a member or nonmember. Beck, 486 U.S. at 762-63.

Mohat does not challenge the ALJ’s and Board’s determination that the union-security clause is valid as it tracks the language of § 8(a)(3). Rather, he argues that it is invalid because his Employer attempted to enforce it as a mandate for full union membership. This theory was not raised before the Board, however. Under 29 U.S.C. § 160(e), a court of appeals cannot review an objection that has not been urged before the Board unless extraordinary circumstances excuse the failure or neglect to urge such an objection. See NLRB v. Robin American Corp., 667 F.2d 1170, 1171 (5th Cir.1982). Mohat claims extraordinary circumstances based on the elimination of his facially invalid claim by the intervening Marquez [261]*261decision and the futility of filing a motion for reconsideration based on the Board’s seven year delay in deciding his case. The pronouncement of intervening decisional law suggesting a new policy does not justify appellate review as an extraordinary circumstance, however.

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