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Douglas Richards, et al v. National Labor Relations Board

December 26, 2012


On Petitions for Review of Decisions and Orders of the National Labor Relations Board. Nos. 25-CB-8891, 25-CB-9253, 25-CB-9254, 13-CB-18961, and 13-CB-18962.

The opinion of the court was delivered by: Williams, Circuit Judge.


Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.

The labor unions in this consoli- dated appeal allowed non-union members who were part of their bargaining units to file objections if they wished to opt out of paying dues used to support political and other activities unrelated to collective bar- gaining, contract administration, or grievance adjust- ment, pursuant to CWA v. Beck, 487 U.S. 735 (1988). How- ever, the unions required that these objections be renewed on an annual basis if the employee wanted to remain opted-out. Petitioners, nonmember employees who were part of the unions' bargaining units, filed separate unfair labor practice charges against the unions, arguing that these "annual renewal" policies violated the unions' duty of fair representation by placing an undue burden on objectors, and they sought an order striking down these policies. Although they did not seek refunds for themselves because the Peti- tioners were always opted-out, they also sought refunds for other employees who may have filed objections at one time, but failed to renew them. On appeal to the NLRB, the Board struck down the unions' annual renewal policies, but did not grant Petitioners' request for refunds on behalf of others.

Petitioners challenge the NLRB's decisions on the merits and also argue that the April 2012 final NLRB orders were not legitimate because the President's January 4, 2012 recess appointments of three of the five NLRB members were invalid. We do not reach these issues, however, because Petitioners lack standing to bring this appeal since the NLRB struck down the annual renewal policies which were the only source of injury each Petitioner suffered. Because Petitioners no longer suffer an injury-in-fact and do not satisfy the statutory "aggrieved" requirement, see 29 U.S.C. § 160(f), we dismiss the petitions for review.


As the United States Supreme Court explained in CWA v. Beck, 487 U.S. 735, 738 (1988), the National Labor Rela- tions Act ("NLRA") "permits an employer and an exclu- sive bargaining representative to enter into an agree- ment requiring all employees in the bargaining unit to pay periodic union dues and initiation fees as a condi- tion of continued employment, whether or not the em- ployees otherwise wish to become union members." However, it held that expending collected fees on activities "unrelated to collective bargaining, contract administration, or grievance adjustment" over the objec- tions of fee-paying nonmember employees was a viola- tion of the union's "duty of fair representation." Id.

Those who make such objections are known as Beck objectors.

So policies were implemented by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL- CIO/CLC ("USW"); the International Brotherhood of Electrical Workers, AFL-CIO ("IBEW"); and IBEW Local 34 to allow nonmember employees to file objections, which would result in a reduction of the Beck objectors' fees that funded nonrepresentational activities. The unions also required Beck objectors to renew their objections on an annual basis if they wished to continue opting out of paying such fees.

On June 10, 2005, Douglas Richards, an Indiana resident who worked at a Cequent Towing Products factory in Goshen, Indiana, filed an unfair labor practice charge against USW, arguing that the "annual renewal" policy placed an undue burden on those who wish to main- tain their Beck objector status without having to renew every year. Ronald R. Echegaray and David Yost--Penn- sylvania and West Virginia residents, respectively--who worked at a Chemtura Corporation factory in West Vir- ginia filed similar charges against USW on November 17, 2008. John Lugo, an Illinois resident and journeyman electrician who obtained employment with various em- ployers through a hiring hall, also filed a charge on June 10, 2008, against IBEW and IBEW Local 34. These individuals (the "charging parties") strongly disagreed with con- tributing to what they perceived to be the union's political activities. Echegaray and Yost always annually renewed their objections, and Richards and Lugo were never required by the unions to annually renew their objections. But they all sought to put an end to the annual renewal policies so that they would no longer have to deal with or worry about having to renew their objections every year.

In response to the above charges, the NLRB General Counsel, who is independent from the NLRB and investi- gates unfair labor practice charges to determine whether to prosecute them, filed a complaint against IBEW and IBEW Local 34 on August 28, 2008, and a consolidated complaint against USW on May 8, 2009. The NLRB General Counsel urged an end to the annual renewal policies, but the charging parties also asked for refunds for all employees who had once objected in the past but failed to renew. See 29 C.F.R. § 102.8 (charging parties considered to be parties to NLRB proceedings by de- fault). Significantly, the charging parties were not alleging an entitlement to refunds for themselves, since they annually renewed their objections or were otherwise treated as Beck objectors at all relevant times. The ALJ assigned to hear the IBEW matter struck down IBEW Local 34's annual renewal policy on December 19, 2008, but declined to order refunds for all employees who had objected in the past but failed to renew their objections. The ALJ assigned to hear the USW matter dismissed the complaint in its entirety on August 6, 2009, and the deci- sions were appealed to the NLRB (alternatively, the "Board").

In August 2011, the Board ruled that the annual renewal policies violated the unions' duty of fair repre- sentation, and ordered that the annual renewal policies no longer be enforced. It did not, however, address the request for refunds. Later that month, the charging parties, not the NLRB General Counsel, filed motions for reconsideration, asking that refunds also be awarded. While the motions for reconsideration were pending, the terms of two Board members expired. This left only two seats filled, and at least a three-member quorum is required for the Board to take action. See New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, 2642 (2010). On January 4, 2012, President Obama made three recess appointments to the Board, bringing the Board to its full five-member capacity. The charging parties moved to disqualify the appointees. And several senators opposed these appointments, arguing that they were invalid because, they contend, the Senate was not actually in recess.

In April 2012, the Board entered orders denying the motions for reconsideration, ruling that retroactive refunds were inappropriate because the unions had not necessarily been on notice that their annual renewal policies were unlawful, and it declined to consider the legitimacy of the recess appointments. The ...

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