National Labor Relations Board, Janet Love, Intervenor v. Office and Professional Employees International Union, Local 2, Afl-Cio

902 F.2d 1164, 58 U.S.L.W. 2680, 134 L.R.R.M. (BNA) 2213, 1990 U.S. App. LEXIS 7771

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 14, 1990
• Docket: 89-1504
• Status: Published

Opinions

BUTZNER, Senior Circuit Judge:

The National Labor Relations Board has applied for enforcement of a Board order directing Local 2 of the Office and Professional Employees International Union to remedy a violation of the National Labor Relations Act. The Board found that Local 2 violated § 8(b)(1)(A) of the Act, 29 U.S.C. § 158(b)(1)(A), by demanding a second initiation fee from Janet Love, a Washington Gas Light Company employee and member of Local 2’s bargaining unit. Because we find the Board’s interpretation of the Act reasonable, we grant enforcement. The Board’s decision is reported as Office and Professional Employees International Union, Local 2, 292 NLRB No. 22 (1988).

I

This case presents us with but one issue, which concerns the demand for a new union initiation fee from a worker who quit a union, has no interest in rejoining, and has worked in the same collective bargaining unit all along. The relevant facts are undisputed. Janet Love worked for Washington Gas Light Company at its Springfield, Virginia, facility until February 1, 1987.- In 1974, she joined Local 2, the union representing the company’s clerical workers at Springfield. She paid an initiation fee and executed a union dues check-off authorization. She remained a member in good standing until the day before the employees went on an economic strike, June 5, 1986, when she resigned from Local 2 and ceased paying all dues. The collective bargaining agreement between Local 2 and the company contained a union security clause, but Virginia has right-to-work legislation that renders security clauses unenforceable. See Va.Code Ann. § 40.1-62 (1986). Love continued to work for the company at Springfield with no further obligation to the union.

Seven months later, the company transferred Love to Rockville, Maryland. The company’s clerical employees at Rockville and Springfield are part of the same bargaining unit and are covered by the same agreement. So far as Local 2 was concerned, the only change affecting Love occasioned by the transfer was the applicability of the union security clause. Maryland is not a right-to-work state, so the clause was enforceable. Because Love was now in Maryland, she was required to pay her “financial core” obligation to the union. Since the move, Love has tendered her regular monthly dues but refused to pay a new initiation fee requested by the union. Local 2 demanded that Love pay the fee or be fired.

This led the general counsel to issue a complaint charging Local 2 with a violation of § 8(b)(1)(A). The Board conducted a hearing and, upon cross motions for summary judgment, found that the union’s demand for a new initiation fee amounted to an unfair labor practice. The Board stated: “We therefore conclude that the imposition of a second initiation fee on [Love] acted as a penalty against [Love] for her exercise of her Section 7 rights.” Office and Professional Employees, Local 2, 292 NLRB No. 22. Local 2 was ordered to rescind its demand for a new fee.

II

Local 2 urges us to deny enforcement of the Board’s order. It points to the proviso in § 8(a)(3) of the Act which, in the absence of applicable state law, allows collective bargaining agreements requiring employees to become “members” of a representative union as a condition of employment. The proviso is the statutory authority for union security agreements such as the one in this case, which would otherwise be barred by §§ 8(b)(1)(A) and 8(a)(1). “Membership” in this context has a narrow meaning. “Under § 8(a)(3), the only aspect of union membership that can be required pursuant to a union shop agreement is the payment of dues. ‘Membership as a condition of employment is whittled down to its financial core.’ ” Pattern Makers’ League of North America v. NLRB, 473 U.S. 95, 106 n. 16, 105 S.Ct. 3064, 3071 n. 16, 87 L.Ed.2d 68 (1985) (quoting NLRB v. General Motors, 373 U.S. 734, 742, 83 S.Ct. 1453, 1459, 10 L.Ed.2d 670 (1963)) (citations omitted).

Local 2 considers the second initiation fee part of Love’s “financial core” responsibility. Local 2 explains that when Love quit the union in Virginia in 1986, she became a stranger to it. She paid no more dues and severed all her union obligations. When the company transferred Love to Maryland, there was no difference between Love and a new employee entering the bargaining unit for the first time. Part of a new employee’s financial core responsibilities to the union would be payment of the initiation fee. Thus, Local 2 reasons that it can require the same of Love.

The parties tell us that this is a novel situation. Certainly it is one not addressed directly by the statute. In these circumstances, we should uphold the Board’s construction of the statute if “reasonablef;] it should not be rejected ‘merely because the courts might prefer another view.’ ” Pattern Makers, 473 U.S. at 114, 105 S.Ct. at 3074 (quoting Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (1979)).

The Board’s construction of the Act is reasonable. Although Local 2 has placed Love in the shoes of a worker joining the bargaining unit in Maryland for the first time, the Board quite accurately points out that Love was at all times a member of the same bargaining unit. Had she remained a union member while in Virginia but quit it in Maryland, she would owe only dues and no initiation fee. The same would be true if she never left the union. Love’s position differs in only one respect from either of these situations. She exercised her right not to belong to the union in a state with right-to-work legislation.

The Board relies on several cases that caution against constraining the right to resign from a union. In Professional Engineers Local 151 (General Dynamics), 272 NLRB 1051 (1984), the Board held that a union could not require two employees who had quit their membership during a strike to pay a second initiation fee if the employees had no interest in rejoining the union. Under the union security clause in effect the Board limited the financial responsibilities of the employees to their regular dues. Accord General Teamsters Local No. 439 (Tracy American Ready Mix Co.), 281 NLRB 1232 (1986), enf'd, 837 F.2d 888 (9th Cir.1988); see also United Food and Commercial Workers Local 115 (California Meat), 277 NLRB 676 n. 1 (1985). The stretch to this case is slight. Love left the union but not the bargaining unit in a right-to-work state, while the employees in General Dynamics resigned their membership in a state without right-to-work legislation. The Board is simply according employees who resign in right-to-work and nonright-to-work states similar treatment by defining their core financial responsibilities the same. It is hard to imagine a more reasonable approach to the Act.

At oral argument Local 2 cited several cases in which the Board recognized that a union could levy a reinstatement fee that was not excessive. In each case, however, the employee in question had left the bargaining unit for several years or was joining it for the first time, and in each the employee wanted reinstatement to the union. See NLRB v. Fisherman and Allied Workers Union, Local 33, 448 F.2d 255 (9th Cir.1971) (employee returning to bargaining unit and union after a six-year absence); NLRB v. International Union of Operating Eng’rs, Local 139, 425 F.2d 17 (7th Cir.1970) (employee returning after six-year absence); International Ass’n of Machinists, Local 504, 99 NLRB 1430 (1952) (former union member entering bargaining unit for first time). The distinctions are important, for here, as the Board emphasized, Love had at all times been a member of the bargaining unit and did not care to rejoin Local 2.

Because the union’s position is not frivolous, we deny Love’s motion for sanctions and double costs.

ENFORCED.