International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, and Its Local Lodge No. 376 (Colt’s Manufacturing Company, Inc.) and George W. Gally. Case 34–CB–1447–1 (formerly Case 31–CB–8641–26)
June 18, 2004
SUPPLEMENTAL DECISION AND ORDER
By Members Schaumber,
Walsh, and Meisburg
On December 24, 2003, Administrative Law Judge Joel P. Biblowitz issued the attached supplemental decision. The Respondents filed exceptions and a brief in support of exceptions. The Charging Party filed a cross-exception and a brief answering the Respondents’ exceptions and in support of his cross-exception, and the General Counsel filed a brief in answer to the Respondents’ exceptions.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the 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 judge’s recommended Order as modified below.[1]
ORDER
The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and orders that the Respondents, International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, and its Local Lodge No. 376, Hartford, Connecticut, their officers, agents, and representatives, shall jointly and severally make whole George Gally, in the amount of $30,773, plus interest accrued to the date of payment.
Thomas Quigley, Esq., for the General Counsel.
Michael Nicholson, Esq., for the Respondents.
W. James Young, Esq., National Right to Work Legal Defense
Foundation, for the Charging Party.
SUPPLEMENTAL ORDER
Statement of the Case
Joel P. Biblowitz,
Administrative Law Judge. This case was
heard by me on October 23, 2003, in
A. Background
This case involving Gally was originally part of a nationwide case being handled by Region 31. On June 10, 1993, the General Counsel filed with the Board a motion to transfer case to and continue proceedings before the Board and for summary judgment. On June 16, 1993, the Board issued an order transferring proceeding to the Board and a Notice to Show Cause why the Motion for Summary Judgment should not be granted, and the parties filed briefs in response to this Order. On August 16, 1999, the Board issued a Decision and Order at 328 NLRB 1215 dismissing the consolidated complaint in its entirety. Stated simply, the Board dismissed the “local presumption” issue on the ground that the Respondents provided adequate support for their use of the local presumption. As regards Gally, he resigned his membership in Respondent in July 1985, and since that time he has been a nonmember. However, there was no complaint allegation, nor was it asserted, that he at any time exercised his right under Communications Workers v. Beck, 487 U.S. 735 (1988), to object to the payment of dues and fees on nonrepresentational activities. The Board stated (328 NLRB at 1218–1219) that in California Saw & Knife Works, 320 NLRB 224 (1995), it held that:
[A] union is required to provide such information [the percentage of union funds spent in the last accounting year on nonrepresentational activities] only to nonmembers who choose to object to paying for union activities not germane to the union’s duties as bargaining agent, i.e., after an objection has been filed. . . . The record is clear that Gally had resigned his union membership but had not exercised his right under Beck to object to the payment of his dues and fees on nonrepresentational activities. Thus, the failure to provide Gally with this information did not violate the Respondent’s duty of fair representation as embodied in Section 8(b)(1)(A) of the Act.
On June 9, 2000, the United States Court of Appeals for the District of Columbia Circuit, Thomas v. NLRB, 213 F.3d 651, decided that the Board was correct on the local presumption issue, but remanded the matter of Gally’s discharge to the Board. The court stated (id. at 656):
After Mr. Gally’s petition for review had been filed, the
court issued Penrod,[2] holding
that potential objectors like Mr. Gally are entitled to be informed of the
amount by which their fees would be reduced were they to become Beck objectors.
Board counsel acknowledges that the Penrod decision controls the disposition of
Mr. Gally’s petition, because the union never provided the required information
to Mr. Gally. It is unclear, however, whether Mr. Gally is entitled to the
remedy he seeks, given the Supreme Court’s holding that objecting nonmembers
are not excused from paying disputed agency fees until a final judgment is
rendered in their favor. [See Railway Clerks v. Allen, 373
The court remanded Gally’s case to the Board “to determine
an appropriate remedy for the
The court of appeals has thus, in effect, found that the Respondents’ failure to notify Gally of the amount by which his dues would be reduced if he became a Beck objector prevented him from exercising his right to decide whether to become an objector. We accept the court’s findings as the law of the case. The remaining question, as the court of appeals has recognized, is whether “Gally is entitled to the remedy he seeks.”
The Board held (id. at 239–240):
We hold provisionally that Gally is entitled to a make whole order in order to remedy the violation found by the court of appeals. In the particular circumstances of this case, however, we shall afford the Respondents an opportunity to establish, at the compliance stage of this proceeding, that Gally was a “free rider,” i.e., that he “willfully and deliberately sought to evade his union-security obligations.” If the Respondents make this showing, Gally will not be entitled to any backpay. [Footnotes omitted.]
In explaining its decision, the Board discussed Beck and California Saw and stated (id. at 240):
However, even if it is established that a union has not fully complied with its fiduciary obligations with respect to enforcement of a union-security clause, the Board has consistently stated that it will not apply those requirements so rigidly “as to permit a recalcitrant employee to profit from his own dereliction in complying with his obligations as a union member.” Thus, the Board will excuse a union’s failure to fully comply with the notice requirements when it is shown that the employee involved was a “free rider,” who “willfully and deliberately sought to evade his union-security obligations.”
The Board has not previously addressed the issue of whether Gally was a free rider. The case was presented to the Board on the General Counsel’s Motion for Summary Judgment. There is, accordingly, no record evidence bearing on the circumstances under which Gally stopped paying dues, i.e., whether or not Gally would have paid any dues or fees even if he had been fully informed of his Beck rights. The Board did not address this issue in its prior decision in this case in light of its finding, on other grounds, that the Respondents’ actions in causing Gally’s discharge were not unlawful. Under the unique circumstances of this case, we shall afford the Respondents an opportunity to litigate Gally’s alleged free rider status at the compliance stage of this proceeding. . . . If the Respondents can show in compliance that Gally would not have paid dues and fees even if he had been given a full Beck notice, that showing will relieve the Respondents from backpay liability. [Footnotes omitted.]
B. The Facts
The backpay period for Gally commences on April 11, 1991,
when he was terminated by Colt at the request of International Union, United
Automobile, Aerospace & Agricultural Implement Workers of America and its
Local Lodge No. 376 (the Union) and ends on October 9, 1992, when he was
reinstated by Colt with the consent of the
Gally began his employment with Colt in 1961 and was a
member of the
In response to its request for legal assistance, the
Your
Your Union dues are $26.56 per month. Our records show that you owe the following amounts.
Month of October ’90 $26.56
November ’90 $26.56
December ’90 $26.56
January ’91 $26.56
You must pay this amount in cash or by check or money order
at the Union office located at
Gally did not respond to this letter nor did he pay the
amount specified so, on March 18, 1991, the
On February 8, 1991 you received a certified letter from
UAW Local 376 regarding your unpaid dues. Under the terms of the current
collective-bargaining agreement between UAW Local 376 and Colt’s Manufacturing,
an employee must pay dues as a condition of continued employment. If you fail
to pay the delinquent amount of $106.24 on or before March 28, 1991 the
Please remit all delinquent amounts promptly to the Union office, as described in the February 7, 1991 letter.
Having received no response or payments from Gally, the Union, by Russel See, its president, wrote to Colt on April 1, 1991, stating that because Gally had failed to pay the uniformly required union dues, under the terms of its contract, “it is required that said employee be discharged” and he was discharged on April 9, 1991. By letters to Gally dated September 21 and October 5, 1992, Colt offered him reinstatement and he returned to work on October 9, 1992.
The principle subjects litigated herein was whether Gally
was notified of, or knew of his Beck rights, and whether he attempted to
become a Beck objector. On April 17, 1991, he gave an affidavit to the
Board stating that at no time did the Union ever notify him of his right to pay
a reduced rate to the
By letter dated November 6, 1992, counsel for the Respondent wrote to Gally briefly explaining Beck. The letter states, inter alia:
At the present time, as spelled out in the attached
letter, the amount payable by non-member objectors to the UAW under the UAW
objection procedures as required union security payments has been set at 82.40%
of union dues. Notwithstanding your failure to file an objection with the UAW,
the UAW has unilaterally determined to treat you as a non-member objector under
the UAW’s objection procedures who has filed an objection with the
Our records show that your current rate of pay is $13.74 per hour. Regular union dues for a person employed in a UAW bargaining unit at Colt with such an hourly rate are $27.48 per month, or two times the hourly rate of pay. Reduced to 82.40% of union dues, the union security payment currently payable by you is accordingly $22.64 per month.
You have so far not made any union security payment to the
By letter of the same date, the International notified Colt that it has deemed that Gally was a Beck objector effective October 6, 1992, and, therefore, his dues would be 82.40 percent of regular dues.
Gally never filed to become a Beck objector either before or after these series of letters. Since his reinstatement, Gally has paid the specified reduced dues, although sometimes these payments are late.
At the conclusion of the strike in 1990, Colt notified the
Union that it would not accept the union-checkoff authorizations signed prior
to the strike, so Colt conducted orientation meetings of employees where there
were given an opportunity to sign new checkoff authorizations. Gally attended
an orientation program on about April 2, 1990 where dues-checkoff authorizations
were distributed by Diane Schell, a human resources representative of Colt.
Gally testified that he told her that he wanted to do something different, he
wanted an alternative to the checkoff of his dues. She responded that she was
busy, but would get back to him, but never did. About a month later, he was
approached by Higgins, the head of human resources at Colt, who offered Gally a
checkoff authorization, and Gally told him that he had told Schell that he
wanted an alternative and wanted to be a core member. Higgins did not answer,
got angry and walked away. Gally was also asked to sign a checkoff authorization
by his immediate supervisor and he again refused. Subsequent to these
conversations, in about October 1990, he met with two union representatives, Lester
Harding, a shop chairman and Carl Ricci, whose position in the
C. Analysis
The sole issue herein pursuant to the Board’s supplemental decision is whether Gally was a “free rider” who “willfully and deliberately sought to evade his union-security obligations.” If so, he is entitled to no backpay. If it is determined that he was not a free rider, then he is entitled to backpay of $30,773.
Initially, I find that it is a respondent’s burden to establish that Gally was a free rider. In addition to the fact that a respondent generally carries the burden in backpay cases, the Board’s language (337 NLRB at 240) herein makes clear that the Respondents here have that burden:
[W]e shall afford the Respondents an opportunity to establish, at the compliance stage of this proceeding, that Gally was a “free rider” . . . . If the Respondents make this showing, Gally will not be entitled to any backpay.
. . . .
Under the unique circumstances of this case, we shall afford the Respondents an opportunity to litigate Gally’s alleged free rider status at the compliance stage of this proceeding. . . . If the Respondents can show in compliance that Gally would not have paid dues and fees even if he had been given a full Beck notice, that showing will relieve the Respondents from backpay liability.
In affording the Respondents an opportunity to be free of any backpay liability if they can establish that Gally was a “free rider” the Board cited three cases: Teamsters Local 630 (Ralph’s Grocery), 209 NLRB 117, 125 (1974) (337 NLRB at 240 fn. 26); Teamsters Local 251 (Ryder Student Transportation), 333 NLRB 1009 (2001) (337 NLRB at 237 fn. 3); and I.B.I. Security, 292 NLRB 648, 649 (1989) (337 NLRB at 237 fn. 31). In Ralph’s, the administrative law judge, as affirmed by the Board, found that the charging party was aware of the union contract and that it contained a union-security clause and yet he still failed to pay the dues as required. The judge stated that a union’s fiduciary duties of notifying employees of their obligations under the union-security clause “was never intended to be so rigidly applied as to permit a recalcitrant employee to profit from his own dereliction in complying with his obligations.” Further, the judge found that the charging party “willfully and deliberately sought to evade his union-security obligations [and] . . . engaged in a calculated attempt to evade the union-security obligations of the contract, as long as he was able to do so.” The judge found that the term “free rider” aptly described the charging party.
In I.B.I., the Board found that the charging party was aware that the employer had a union contract, and was told by his employer and a union representative on a number of occasions that he had to join the union and pay an initiation fee to the union. When he failed to do so, the union requested that the employer terminate him, which it did. In dismissing the complaint, the Board found that although the union may not have satisfied all the requirements of Philadelphia Sheraton, 136 NLRB 888 (1962), that does not preclude them from dismissing the complaint. Citing Ralph’s, the Board stated (292 NLRB at 649):
Moreover, even if the Union did not fully comply with its fiduciary obligation, the Board never intended these requirements “to be so rigidly applied as to permit a recalcitrant employee to profit from his own dereliction in complying with his obligations as a union member.” . . . Thus, the Board will excuse a union’s failure to fully comply with the notice requirements when it is shown that the employee involved has “willfully and deliberately sought to evade his union-security obligations.”
In Ryder, a Beck case, one of the alleged discriminatees was notified on three occasions, beginning a month or two after he was hired, that he had to join the union. When threatened with termination for his failure to join the union 4 months after his employment began, he agreed to join, but refused to pay back dues and he was terminated. The administrative law judge found him to be a “classic free rider,” but he and the Board found that his termination violated Section 8(b)(1)(A) of the Act because the union never notified him and the other charging parties of their rights under NLRB v. General Motors Corp., 373 U.S. 734 (1963), to be dues-paying nonmembers of the union or of their Beck rights. Further, in Seafarers (Tomlinson Fleet Corp.), 149 NLRB 1114, 1119–1120 (1964), the trial examiner stated:
A cardinal purpose of union-security provisions in collective-bargaining contracts is to distribute equitably the cost of union representation among those benefiting thereby, or, in other words, to eliminate the “free rider,” i.e., the employee who, while content to receive the benefits of union representation, is unwilling to bear his fair share of the cost thereof.
The trial examiner in Seafarers later defined a free rider as one who “was motivated solely by his aversion to paying any part of his dues obligations and would not have complied even with a proper demand.”
Two cases cited by counsel for the General Counsel in his brief are also helpful: Teamsters Local 150 (Delta Lines), 242 NLRB 454 (1979), and Western Publishing Co., 263 NLRB 1110 (1982). In Delta, 242 NLRB at 455, the Board discussed a union’s notice obligations to employees and stated:
The instant facts clearly reveal that Respondent failed to meet its obligations to Lowd [the charging party]. They further reveal that no bad faith was shown to have existed on Lowd’s part. In this regard, we note, in particular, that Lowd, on a number of occasions, asked Respondent’s designated steward of his obligations and the steward told him he did not know what Lowd’s obligations were. Further, Lowd undertook other inquiries which also proved fruitless.
In a similar fashion, the Board, in Western, 263 NLRB at 1113, stated:
[W]hen it is shown that the employee involved has “willfully and deliberately sought to evade his union-security obligations,” the Board will excuse a union’s failure to fully comply with the notice requirements.
In the present case, however, neither the conduct of
These cases establish that the Board has set the bar high
for the
ORDER
The Respondents, International Union, United Automobile, Aerospace & Agricultural Implement Workers of America and its Local Lodge No. 376, shall jointly make whole George Gally in the amount of $30,773, plus interest accrued to the date of payment.
[1] We have modified the judge’s recommended Order to provide for joint and several liability, consistent with the relief ordered by the Board at 337 NLRB 237, 242 (2001).
1 Counsel for the General Counsel’s unopposed motion to correct transcript is granted.
2 Penrod v. NLRB, 203 F.3d 41 (D.C. Cir. 2000).