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Court Sends NLRB Back to Deal With Automatic Deductions for Dues

In what the dissent called a "hot potato," a divided appeals court said the National Labor Relations Board erred in rejecting the claims of grocery workers who had cancelled automatic deductions for their dues.

The U.S. Circuit Court of Appeals for the District of Columbia remanded the case back to the board to reconsider its decision in Stewart v. National Labor Relations Board. The Arizona workers had authorized their employer to deduct union dues, but later resigned from the union and revoked their authorization.

"An employee's authorization for her employer to check off union dues from her wages is not irrevocable," Judge Sri Srinivasan wrote for the court.

Not a Pearl

The majority and dissent referred to the case as "straightforward" in certain respects, but they had a sharp exchange about some issues.

Judge Laurence Hirsch Silberman, while concurring in the judgment, said the majority looked for ambiguity in the underlying administrative law decision and attributed "an absurd position" to the fact-finder.

"It is not a pearl the majority has found; it is a piece of sand," he said.

The debate also put the the court at odds over union check-off agreements and a board precedent, Frito-Lay, Inc., 243 NLRB 137, 137 (1979). The majority said the board improperly applied the case in reasoning that it limited workers' rights to revoke dues' authorizations between union contacts.

A Hot Potato

"[T]he Board defends its decision on the assumption that this is a Frito-Lay case, and on the theory that Frito-Lay was correctly decided," the majority said. "The assumption, for all the reasons explained, is incorrect -- this is not a Frito-Lay case."

With no pun apparently intended, the dissent said the case was "a hot potato." He said it was a straight-forward dispute over the criminal provisions of Section 302 of the Labor Management Relations Act:

"Does the criminal statute mean employees have a legal right to revoke dues checkoff authorizations after the termination of an 'applicable collective bargaining agreement?'" he posed. "Or can a union frustrate that right by providing only a 'window period' for revocation before termination?"

Silberson said the majority avoided that question.

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