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Tamosiunas v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

June 15, 2018

Mark Tamosiunas, et al., Petitioners
National Labor Relations Board, Respondent Unite Here!, Local 5, Intervenor

          Argued January 8, 2018

          On Petition for Review of an Order of the National Labor Relations Board

          Glenn M. Taubman argued the cause for petitioners. With him on the briefs were Sarah E. Hartsfield and Aaron B. Solem.

          Valerie L. Collins, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Richard F. Griffin, Jr., General Counsel at the time the brief was filed, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Julie B. Broido, Supervisory Attorney.

          Eric B. Myers argued the cause and filed the brief for intervenor Unite Here!, Local 5.

          Before: Millett and Wilkins, Circuit Judges, and Edwards, Senior Circuit Judge.



         Several Hyatt Regency Hotel employees in Hawaii objected to and formally declined full membership in their union. Nonetheless, they received a letter from the union requiring immediate payment of full union dues-that is, dues owed by employees who chose to join the union in full. The letter went on to inform the employees that the Hyatt Regency Hotel would soon be deducting the amounts necessary to pay full union dues from future paychecks at the union's behest. The Board concluded that, in its view, the letter was an obvious mistake and no reasonable employee reading it would have felt pressured to pay the demanded full union membership dues. The union, for its part, neither acknowledged that the letter was a mistake, nor apologized for sending the dues demand to employees who it knew had formally objected to joining the union.

         The Board's decision is legally unsupportable on this record. The letter demanded payment from individuals the union knew had rejected full membership, and it simultaneously initiated the garnishment process to collect the full dues. That letter reasonably tended to coerce or restrain the objecting Hyatt employees in the exercise of their statutory right to limit their association with the union. Accordingly, we grant the employees' petition, vacate the Board's decision, and remand for further proceedings consistent with this opinion.



         The National Labor Relations Act ("the Act") protects an employee's right to "bargain collectively through representatives of [his or her] own choosing"-a guarantee that is commonly referred to as a worker's "Section 7" rights. 29 U.S.C. § 157 (codifying Section 7 of the Act). Importantly, Section 7 equally protects the inverse right: the right to abstain from unionization. Id. To enforce that right, the Act prohibits both employers and labor unions from engaging in "unfair labor practices, " including any behavior designed to "interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in" Section 7. Id. § 158(a), (b)(1)(A) (codifying Section 8 of the Act). In other words, restraining an employee from exercising her right to abstain from union membership constitutes an unfair labor practice. So does coercing an employee not to exercise that right.

         There are a few exceptions: the prohibition on unfair labor practices does not preclude an employer from agreeing to require union participation "as a condition of employment, " assuming the relevant union meets certain statutory prerequisites. 29 U.S.C. § 158(a)(3). And it does not impair a union's ability to prescribe its internal membership standards. Id. § 158(b)(1).

         When an employer requires union membership as a mandatory condition of employment, the law allows employees to choose between becoming full members or "core" financial members. Unlike full members, "core" members pay a reduced annual fee ("core fee") to cover their fair share of the union's representative work that aims to benefit all employees. NLRB v. General Motors Corp., 373 U.S. 734, 742 (1963) ("'Membership' as a condition of employment is whittled down to its financial core.").

         The obligation to pay core fees applies to all employees, even those opposed to union representation. That is because, once a union becomes the collective bargaining agent for employees in a work unit, the union is required by law to represent the interests of all employees equally, even those that do not support the union. Emporium Capwell Co. v. Western Addition Cmty. Org., 420 U.S. 50, 64 (1975). That task "entails the expenditure of considerable funds" and resources. International Ass'n of Machinists v. Street, 367 U.S. 740, 760 (1961). Also, the benefits obtained by the union in negotiating with the employer-such as pay, work opportunities, vacation and sick leave-redound to the benefit of core members just as much as full union members. For those reasons, requiring core members to pay their fair share of union expenses incurred on behalf of the entire workforce best accommodates the associational rights of all employees while preventing freeloading by employees and providing unions with the resources necessary to perform effectively their representative duties to all employees. See International Ass'n of Machinists, 367 U.S. at 750, 760-764 ("Activities of labor organizations resulting in the procurement of employee benefits are costly * * *. We believe that it is essentially unfair for nonmembers to participate in the benefits of those activities without contributing anything to the cost.").

         In short, though full union members pay a higher rate and, in exchange, receive the right to participate in internal union affairs and benefit programs, "core" members still qualify as union "members" for purposes of retaining their contractual right to "continued employment" by paying their fair share of union activity undertaken on behalf of all employees.


         Mark Tamosiunas, Steven Taona, Agnes Demarke, and Wayne Young (collectively, the Objecting Employees) provide hospitality services for the Hyatt Regency Hotel in Waikiki, Hawaii. Since at least 2006, "Unite Here!, " Local 5, a labor union, has represented hotel hospitality workers in Hawaii, including those at the Hyatt Regency Hotel.

         Between July 1, 2006 and June 30, 2010, a collective bargaining agreement governed relations between Local 5 and the Hyatt Regency Hotel. Among many other things, this agreement included a "union security clause, " which required all Hyatt employees to become or remain either full or core members of Local 5 "as a condition of continued employment." J.A. 11.

         From the start, the Objecting Employees have participated in Local 5 solely as "core" members. They have consistently objected to the payment of any additional fees for ...

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