United States Court of Appeals, District of Columbia Circuit
January 8, 2018
Petition for Review of an Order of the National Labor
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.
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.
MILLETT, CIRCUIT JUDGE
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.
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.
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.
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).
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
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.").
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.
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.
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.
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