978-1285770178 Case Printout Case CPC-10-05 Part 2

Unlock access to all the studying documents.

View Full Document

tion, see New Process Steel, L.P., 564 F.3d 840 (7th Cir.2009), cert. granted, — U.S. —-, 130 S.Ct. 488, —

The NLRA seeks to secure for employees the liberty to join unions-and not to join unions. In seeking to balance

these sometimes competing objectives, Congress provided in Section 8(b)(1)(A) that unions may not restrain or co-

ployees in collective bargaining may negotiate and enter into a union-security agreement with the employer. 29

U.S.C. § 158(a)(3). Union-security agreements require represented employees to join the union and authorize the

union to seek an employee’s dismissal if he fails to keep current on his dues. Congress’s reason for allowing these

agreements, the Supreme Court has explained, is “that in the absence of a union-security provision many employees

sharing the benefits of what unions are able to accomplish by collective bargaining will refuse to pay their share of

61 F.3d 41, 43 (D.C.Cir.1995) (quoting Radio–Electronics Officers Union v. NLRB, 16 F.3d 1280, 1286

(D.C.Cir.1994)); see also Gen. Motors Corp., 373 U.S. at 742, 83 S.Ct. 1453. Relevant for our purposes, the Board

has long interpreted Section 8(a)(3) to embrace a fiduciary duty on the part of the union, requiring it to “deal[ ] fairly

with the employee” when enforcing its rights under a union-security agreement. Local 545, Int’l Union of Operating

Eng‘rs, 161 NLRB 1114, 1121 (1966); see also Philadelphia Sheraton Corp., 136 NLRB 888, 896 (1962), enforced

deal fairly with employees requires it to: (1) provide the employee with actual notice of the precise amount due, in-

cluding the months for which dues are owed; (2) explain how it computed the amount due; (3) give the employee a

reasonable deadline for payment; and, (4) explain to the employee that failure to pay will result in discharge. See,

immediate discharge. Whether or not the union sent the letter to the company, and whether or not the company un-

derstood the letter to be a request to fire Mr. Lopez immediately, see supra note 1, there is no question that the letter

had the reasonable tendency to cause an employee to fear that possibility. And a Section 8(b)(1)(A) violation arises

suggesting the union did just the opposite-first agreeing to a payment schedule with Mr. Lopez on November 13,

and then having him fired the next day, before he could complete the agreed schedule and while he was on track to

do so. Though some of this evidence is disputed, we cannot say that a “reasonable mind” had to reject it. And ac–

cepting this evidence leads unavoidably to the conclusion that the union violated both Section 8(b)(1)(A)’s prohibi–

tion against unduly restraining or coercing employees, as well as Section 8(b)(2)’s prohibition against causing an

First, the ALJ credited Mr. Lopez’s testimony that he did not receive the October 12 letter and, the ALJ held, the

union could not have discharged its fiduciary duties to him by means of a letter he never received. The union asks us

to overturn the ALJ’s factual finding, insisting that Mr. Lopez must have received the October 12 letter because it

affixed appropriate postage to the letter, properly addressed it to Mr. Lopez, and placed it in the United States mail.

placed in the United States mail normally arrive where they are directed because of the “probability that the officers

of the [postal service] will do their duty.” Rosenthal v. Walker, 111 U.S. 185, 193, 4 S.Ct. 382, 28 L.Ed. 395 (1884).

Even in 1884, when the Supreme Court decided Rosenthal, no one claimed perfection for the post office and the

“mailbox rule” was and never has been more than a presumption that may be rebutted by other evidence suggesting

that the addressee did not receive the letter. See id. at 193-94, 4 S.Ct. 382.

Lopez’s testimony that he hadn‘t received the letter, explained his reasons for doing so, and the Board adopted the

ALJ’s determination as its own. The record, moreover, contains other evidence supporting Mr. Lopez’s sworn testi-

mony that he didn’t receive the October 12 letter-perhaps most notably that he took no action after the October 12

letter but acted immediately after receiving the substantially similar November 1 letter.

clusion that the union violated Section 8(b)(1)(A) on November 1, and Sections 8(b)(1)(A) and (b)(2) on

November 14. See Blue Grass, 299 NLRB at 724; Teamsters Local Union No. 122, 203 NLRB at 1042.

594 F.3d 732, 187 L.R.R.M. (BNA) 3153, 159 Lab.Cas. P 10,177

END OF DOCUMENT