Laborers' International Union of North America, Local 578 v. National Labor Relations Board

FILED
United States Court of Appeals
Tenth Circuit

February 2, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LABORERS’ INTERNATIONAL
UNION OF NORTH AMERICA,
LOCAL 578,

Petitioner/Cross-Respondent,
v. Nos. 08-9564, 08-9569

NATIONAL LABOR RELATIONS
BOARD,

Respondent/Cross-Petitioner.

PETITION FOR REVIEW AND CROSS-APPLICATION
FOR ENFORCEMENT OF AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD
(NLRB-1:27-CB-4935)

Terrence A. Johnson, Colorado Springs, Colorado, for Petitioner/Cross-
Respondent.

Milakshmi V. Rajapakse (Meredith L. Jason, Supervisory Attorney, Ronald
Meisburg, General Counsel, John E. Higgins, Jr., Deputy General Counsel, John
H. Ferguson, Associate General Counsel, and Linda Dreeben, Deputy Associate
General Counsel, with her on the brief), National Labor Relations Board,
Washington, D.C., for Respondent/Cross-Petitioner.

Before GORSUCH, McKAY, and HOLMES, Circuit Judges.

GORSUCH, Circuit Judge.
 In this case, the National Labor Relations Board (NLRB or Board) held that

the Laborers’ International Union of North America, Local 578, engaged in unfair

labor practices when it persuaded Shaw Stone & Webster Construction, Inc. to

fire Sebedeo Lopez for failing to pay his union dues. In support of its holding,

the NLRB found that the union failed to provide Mr. Lopez with legally sufficient

notice about his delinquent dues or a reasonable opportunity to cure the

delinquency before it threatened, and then successfully sought, his dismissal.

Before us, the union challenges the factual findings on which the NLRB

pinned its decision, arguing that a better reading of the record suggests it behaved

appropriately toward Mr. Lopez. The problem is that we must affirm the NLRB’s

decision so long as “substantial evidence” exists in the record to support its

findings. Our job isn’t to make the call ourselves, but only to ask whether a

reasonable mind could have made the call the NLRB made. And our review of

the record of this case reveals ample, if not incontestable, evidence to support the

NLRB’s factual findings. So it is that we are obliged to deny the union’s petition

for review and grant the NLRB’s cross-petition seeking enforcement of its order.

I

A

The Laborers’ International Union and Shaw Stone & Webster are parties to

a collective bargaining agreement. Under the agreement, the union serves as the

exclusive collective bargaining agent for all laborers, journeymen laborers, and

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apprentice-laborers at the company’s Pueblo, Colorado work site. Like many

collective bargaining agreements, this one contains a “union-security” provision

requiring all employees represented by the union to join the union. If an

employee fails to join the union, or fails to keep current on his union dues, the

union-security provision permits the union to seek and obtain the employee’s

dismissal from the company.

Mr. Lopez started work at Shaw Stone & Webster on July 17, 2006. No

one disputes that he was and is represented by the union in collective bargaining

and so bound to join the union. In early October 2006, however, the union

noticed that Mr. Lopez had not paid his initiation fee or certain dues. As a result,

the union prepared a letter on October 12, 2006 addressed to Shaw Stone &

Webster that “request[ed] the dismissal of” Mr. Lopez. The letter represented

that Mr. Lopez owed the union $120 in late dues and $25 for reinstatement, but it

did not explain how these amounts were calculated or provide Mr. Lopez any

grace period in which to make payments. Instead, the letter purported to demand

Mr. Lopez’s immediate dismissal.

Still, not everything was quite as it appeared. Though the letter was

addressed to the company, and though it spoke of Mr. Lopez in the third person,

the union never sent the letter to Shaw Stone & Webster and the union did not

actually seek Mr. Lopez’s dismissal at that time. Instead, the union mailed the

letter only to Mr. Lopez in an effort to coax him into paying up quickly.

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 But even still, not everything was as it appeared. Mr. Lopez insists he

never received the letter or otherwise heard from the union about his overdue

account. For its part, the union says that Mr. Lopez must have received the letter

because it sent the correspondence to the right address, with sufficient postage,

and the letter was never returned. The union also insists that it instructed Mr.

Lopez’s shop steward, Dave Lucero, to discuss the overdue dues problem with

Mr. Lopez in person. In any event, the parties agree Mr. Lopez didn’t respond

with any immediate payment.

When nothing happened, the union prepared another letter, this one dated

November 1, 2006. Like the first letter, this one was addressed to Shaw Stone &

Webster and sought “the dismissal of” Mr. Lopez. This letter represented that

Mr. Lopez’s unpaid dues now totaled $415. But again like its predecessor, this

letter provided no explanation about how the overdue amount was calculated, let

alone why the amount nearly tripled in three weeks, and no deadline for payment.

Unlike the first letter, though, the union made sure Mr. Lopez and the company

received this one, hand-delivering copies of the document to both on November 1.

The parties disagree about what happened next. Mr. Lopez says he spoke

with Mr. Lucero and that Mr. Lucero told him to contact the union’s office

manager, Patricia Martinez, to make arrangements for payment. Mr. Lopez insists

that Mr. Lucero did not explain how the union calculated the amount due or

provide a specific deadline for payment. For its part, the union says that Mr.

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Lopez spoke over the phone to the union’s Secretary Treasurer, Rudy Ortiz, who

told him he had to pay $150 that week and another $150 the next week, or else

he’d be fired.

It is undisputed, however, that Mr. Lopez did contact Ms. Martinez

sometime between November 1 and November 5, and told her that he was able to

pay $200 toward his past-due account. Ms. Martinez replied that this was “okay,”

and the following Friday, November 10, Mr. Lopez purchased a money order for

$200. On Monday, November 13, Mr. Lopez called Ms. Martinez to tell her that

he was planning on bringing the $200 money order to the union’s main office in

Colorado Springs that day. Ms. Martinez volunteered that Mr. Lopez “didn’t have

to go all the way to Colorado Springs” because Mr. Ortiz would be at the Pueblo

office and Mr. Lopez could simply drop off the payment with him.

According to Mr. Lopez, when he arrived at the Pueblo office later that day

it was locked and appeared unstaffed. So Mr. Lopez called Ms. Martinez to ask

what he should do. Ms. Martinez told him to “go ahead and fill out the money

order and throw it in the slot in the door.” Mr. Lopez claims he did just that,

though the union insists it never found the money order. Mr. Lopez also claims

that he asked Ms. Martinez if he could have until Friday, November 17, to pay the

remaining $215 sought by the union in its November 1 letter. According to Mr.

Lopez, Ms. Martinez replied that he could have until Thursday, November 16,

something Ms. Martinez does not dispute.

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 But the union didn’t wait that long. Instead, on Tuesday, November 14, it

contacted the company, and this time it unmistakably demanded Mr. Lopez’s

immediate discharge. Later the same day, Randy Espinoza, the company’s

General Foreman, walked Mr. Lopez off the job site. Mr. Espinoza explained to

Mr. Lopez that he was acting on “strict orders from Rudy Ortiz to walk [Mr.

Lopez] off the job because of [his] union dues.” Despite having been fired, Mr.

Lopez claims he paid the remaining $215 on Thursday, November 16, just as he

and Ms. Martinez had agreed.

B

Upset with his firing and how it unfolded, Mr. Lopez complained to the

union, the company, and the NLRB. Eventually, the union and company agreed

to reinstate Mr. Lopez and the NLRB decided to press unfair labor practice

charges against the union. The case was assigned to an Administrative Law Judge

(ALJ), who accepted Mr. Lopez’s testimony that he never received the October 12

letter, as well as Mr. Lopez’s account of the events following his receipt of the

November 1 letter. With those facts in hand, the ALJ proceeded to hold that the

union violated the National Labor Relations Act (NLRA) on both November 1 and

November 14.

First, the ALJ concluded that the union’s November 1 letter violated

Section 8(b)(1)(A) of the NLRA. Section 8(b)(1)(A) makes it an unfair labor

practice for a union to “restrain, or coerce employees in the exercise of their

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rights guaranteed in [Section 7 of the Act],” 29 U.S.C. § 158(a)(1); Section 7, in

turn, affords employees the right to “refrain from any or all [union] activities,” 29

U.S.C. § 157. The ALJ reasoned that the union violated Section 8(b)(1)(A) by

threatening Mr. Lopez with immediate discharge without first explaining to him

how it calculated his delinquency or offering him a reasonable period of time to

cure that delinquency.

Second, the ALJ concluded that the union’s actions on November 14, when

it secured Mr. Lopez’s discharge, likewise violated Section 8(b)(1)(A). The ALJ

stressed that, even by this time, the union still had not explained to Mr. Lopez

how it calculated the amounts it claimed were overdue. The ALJ also emphasized

that, while the union had by then agreed to a payment plan with Mr. Lopez, it

denied Mr. Lopez the chance to complete that payment plan, even though he was

on track to do so. Separately, but relatedly, the ALJ found that the union’s

actions on November 14 violated Section 8(b)(2) of the NLRA, which makes it an

unfair labor practice for a union “to cause or attempt to cause an employer to

discriminate against an employee,” 29 U.S.C. § 158(b)(2), in a manner aimed at

“encourag[ing] or discourag[ing] membership in any labor organization,” 29

U.S.C. § 158(a)(3). The ALJ reasoned that the union violated this provision by

asking and persuading the company to fire Mr. Lopez without explaining to him

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how it calculated the overdue amounts or affording him the chance to complete

the agreed payment plan. 1

The NLRB adopted the ALJ’s decision and ordered the union to undertake

certain remedial measures. Among other things, the NLRB ordered the union to

make Mr. Lopez whole for any loss of pay or benefits, to remove from its files

any reference to Mr. Lopez’s unlawful discharge, and to take steps to avoid

similar problems with other employees in the future. In response, the union filed

a timely petition for review with this court, and the NLRB filed a cross-petition

for enforcement of its order. 2

1
The ALJ declined to find that the union violated Section 8(b)(2) on
November 1. Though the union’s November 1 letter purported to ask the
company to dismiss Mr. Lopez immediately, the union insists that it never sent
the letter to the company or took any other steps at that time to secure Mr.
Lopez’s dismissal. The ALJ also found that the company knew the union had a
practice of sending threatening letters to its members in order to coax them into
paying, without really intending to seek their discharge. According to the ALJ,
the company knew that the union would seek an employee’s discharge only at a
later time, as in this case, if its threatening letters failed to convince the employee
to pay. This aspect of the ALJ’s decision was not challenged before the NLRB
and is not before us. Accordingly, we have no reason to pass on its propriety.
2
At the time of its decision in this case, the NLRB enjoyed only two
members, though it is statutorily entitled to five. Before us, the union has not
questioned the NLRB’s authority to issue decisions with only two serving
members, though others have raised the question in other cases and obtained
competing rulings from our sister circuits. Compare Narricot Indus., L.P. v.
NLRB, 587 F.3d 654, 659 (4th Cir. 2009) (holding that two-member NLRB can
issue decisions), Snell Island SNF LLC v. NLRB, 568 F.3d 410, 423-24 (2d Cir.
2009) (same), New Process Steel, L.P. v. NLRB, 564 F.3d 840, 845-46 (7th Cir.
2009) (same), and Ne. Land Servs., Ltd. v. NLRB, 560 F.3d 36, 41 (1st Cir. 2009)
(same), with Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469,
(continued...)

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 II

The Board has long read the NLRA as imposing certain fiduciary duties on

unions that benefit from union-security agreements. The union in this case does

not contest the NLRB’s interpretation of the NLRA, but instead insists as a

factual matter that it discharged all of its statutorily deduced fiduciary

obligations. Before turning to assess that factual claim, we first necessarily pause

to outline the nature of the fiduciary duties the union admits to owe and claims to

have met.

A

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 coerce

employees into engaging in union activities. 29 U.S.C. § 158(b)(1)(A). In

Section 8(b)(2), Congress further prohibited unions from, among other things,

seeking an employee’s dismissal for lack of union membership. 29 U.S.C.

§ 158(b)(2).

2
(...continued)
472-73 (D.C. Cir. 2009) (holding that two-member NLRB cannot issue decisions).
During the pendency of this appeal, two things have happened on this front: our
court has joined those courts holding that two-member decisions are permissible,
see Teamsters Local Union No. 523 v. NLRB, __ F.3d __, 2009 WL 4912300
(10th Cir. 2009), and the Supreme Court has indicated its intent to address the
question, see New Process Steel, L.P., 564 F.3d 840 (7th Cir. 2009), cert. granted,
130 S. Ct. 488 (Nov. 2, 2009) (No. 08-1457). At least for now, we are of course
bound by our governing circuit precedent approving two-member decisions.

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 At the same time, Congress provided an “exception” to these rules in

Section 8(a)(3). NLRB v. Hotel, Motel & Club Employees’ Union, Local 568, 320

F.2d 254, 257-58 (3d Cir. 1963). Under that provision, a union representing

employees 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 the cost,” essentially free-riding on the work of, and benefits

provided by, the union and its paying members. NLRB v. Gen. Motors Corp., 373

U.S. 734, 740-41 (1963) (internal quotation marks omitted).

Still, because union-security agreements afford the “union the formidable

power to compel an employee’s discharge,” their enforcement is “strictly

regulated.” Int’l Bhd. of Elec. Workers, AFL-CIO, Local No. 99 v. NLRB, 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.

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.

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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 320 F.2d

254 (3d Cir. 1963). When a union adheres to this fiduciary duty, it lawfully

operates within Section 8(a)(3)’s “carefully circumscribed” exception to Sections

8(b)(1)(A) and (b)(2). Hotel, Motel & Club Employees’ Union, 320 F.2d at 258.

When it fails to fulfill this obligation, however, it operates outside of the

exception, and thus violates Sections 8(b)(1)(A) and (b)(2).

Among other things, before invoking the union-security clause against an

employee, the union’s obligation to deal fairly with employees requires it to: (1)

provide the employee with actual notice of the precise amount due, including 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, e.g., Coopers NIU

(Blue Grass), 299 NLRB 720, 723 (1990) (citing Western Publishing Co., 263

NLRB 1110 (1982)); Int’l Bhd. of Elec. Workers, 61 F.3d at 43; NLRB v. Local

1445, United Food & Commercial Workers Int’l Union, 647 F.2d 214, 217 (1st

Cir. 1981). Seeking an employee’s discharge without first providing this sort of

notice, the NLRB has held, violates Section 8(b)(1)(A) of the NLRA, because

such behavior tends to “restrain or coerce” the employee from exercising his right

to refrain from union membership. And it violates Section 8(b)(2) because such a

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request amounts to an “attempt to cause an employer to discriminate against an

employee” in violation of his right to refrain from union membership.

While violations of Sections 8(b)(1)(A) and 8(b)(2) often come in pairs, the

NLRB has noted that they can come singly. For example, a union might threaten

an employee with immediate discharge without first providing him with adequate

notice of his delinquency or a reasonable opportunity to cure it, but then take no

action toward carrying out its threat. Even assuming such conduct falls beyond

Section 8(b)(2)’s ambit because it doesn’t constitute an “attempt to cause an

employer to discriminate against an employee,” the NLRB has held it still

violates Section 8(b)(1)(A) because of its tendency to “restrain or coerce”

employees in union activity. See Operating Eng’rs, Local Union No. 3, 313

NLRB 25, 33 (1993).

Put differently, the union cannot threaten to do under Section 8(b)(1)(A)

what it cannot actually do under Section 8(b)(2). See Teamsters Local Union No.

122, 203 NLRB 1041, 1041 (1973), enforced, 502 F.2d 1160 (1st Cir. 1974)

(union’s unlawful demand for termination constituted an 8(b)(1)(A) violation,

while union’s unlawful causing of termination constituted an 8(b)(2) violation).

Thus, before it may threaten an employee with an adverse employment action, the

union must afford him notice meeting all four requirements identified above.

Neither does it make a difference whether the employee subjectively feels

restrained or coerced by the union’s threatening conduct: a violation occurs

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whenever the union’s conduct “reasonably tends to have a coercive effect.”

Amalgamated Clothing Workers of America, AFL-CIO, Local 990 (Troy Textiles,

Inc.), 174 NLRB 1148, 1151 (1969), enforced, 430 F.2d 966 (5th Cir. 1970). The

relevant test, then, is an objective, not subjective, one. 3

B

On appeal to us, the union does not challenge these legal principles, but

instead disputes the Board’s factual finding that it engaged in conduct

contravening them. In assessing such a challenge, we may ask only whether

substantial, not uncontested or incontestable, evidence exists in the record to

support the result the NLRB reached. Universal Camera Corp. v. NLRB, 340 U.S.

474, 477 (1951). Under this standard of review, it is not our job to find facts

afresh. Instead, we ask only whether the record contains “such relevant evidence

as a reasonable mind might accept as adequate to support” the NLRB’s decision.

Id.; see also Energy West Mining Co. v. Oliver, 555 F.3d 1211, 1217 (10th Cir.

2009). In this respect, our job is something like the role of the instant-replay

booth in football: the call on the field presumptively stands and we may overturn

it only if we can fairly say that no reasonable mind could, looking at the facts

3
The NLRB has suggested that the duty of fair dealing may be less
rigorous when a union is seeking termination of a worker who has “willfully and
deliberately sought to evade his union-security obligations.” Western Publishing,
263 NLRB at 1113. In the proceedings before the ALJ and NLRB, the Union
unsuccessfully argued that Mr. Lopez fit under this exception, but it does not
raise the argument in this appeal, so we have no occasion to address the question.

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again, stand by that call. So it is that we, like the instant-replay official, often

affirm decisions that we might not have made ourselves. See NLRB v. Interstate

Builders, Inc., 351 F.3d 1020, 1028 (10th Cir. 2003).

1

Viewed in this light, we have no difficulty concluding that the NLRB’s

decision in this case should be sustained. The union’s November 1 letter violated

Section 8(b)(1)(A), as the NLRB held, because the union claimed the right and

intent to seek Mr. Lopez’s immediate dismissal without first discharging its

fiduciary duties. The record unmistakably reveals that the November 1 letter (1)

did not explain how the union calculated the amount owed, (2) did not purport to

afford Mr. Lopez any (let alone a reasonable) deadline for payment, (3) yet,

threatened Mr. Lopez with immediate discharge. Whether or not the union sent

the letter to the company, and whether or not the company understood 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 whenever a union engages

in conduct that would reasonably tend to coerce an employee into complying with

its demands, without first discharging its fiduciary obligations toward that

employee.

A similar story can be told of the union’s conduct on November 14, when it

arranged to have Mr. Lopez fired. The record contains ample evidence that, even

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by this point, the union still had not explained to Mr. Lopez how it calculated his

dues, or provided him a reasonable time period in which to make payment. In

fact, there is evidence 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 accepting this evidence leads

unavoidably to the conclusion that the union violated both Section 8(b)(1)(A)’s

prohibition against unduly restraining or coercing employees, as well as Section

8(b)(2)’s prohibition against causing an employer to fire an employee.

2

The union seeks to avoid these conclusions primarily by arguing that it

discharged its fiduciary duties in its October 12 letter to Mr. Lopez. At least two

problems attend this line of argument, however.

a

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. These facts,

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the union urges us, should be enough for us to invoke the “mailbox rule” and

presume that Mr. Lopez received the document.

The difficulty is that, even assuming without deciding that the NLRB was

obliged to follow the common law “mailbox rule” in the course of its work (an

issue the parties haven’t explored), that “rule” is not the sort of immutable legal

command the union suggests. Rather, it is simply an evidentiary presumption —

a presumption that items 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 (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.

In fact, we have explained that, after a party makes a presumptive showing

of receipt using the “mailbox rule,” an opposing party’s sworn denial of receipt

can “create[] a credibility issue that must be resolved by the trier of fact.” Witt v.

Roadway Express, 136 F.3d 1424, 1430 (10th Cir. 1998); see also S. Frederick

Sansone, 127 NLRB 1301, 1302 n.4 (1960). And that’s exactly what occurred

here. In this case, the ALJ, as trier of fact, received extensive and conflicting

sworn testimony from both sides about the letter’s mailing and receipt.

Ultimately, he credited Mr. Lopez’s testimony that he hadn’t received the letter,

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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 testimony 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.

Under the substantial evidence standard governing our review of this case,

we can insist on no more. We are required to look only for the existence of some

evidence from which a reasonable mind could conclude as the NLRB did, and in

doing so we take special care to remember that we “do not weigh the credibility

of one witness against another nor do we search for contradictory inferences.”

Osteopathic Hosp. Founders Ass’n v. NLRB, 618 F.2d 633, 636 (10th Cir. 1980)

(internal quotation marks omitted). Here, the ALJ heard live testimony from the

various competing witnesses, found Mr. Lopez credible, explained his bases for

doing so, and other record evidence tends to confirm that finding. Unavoidably,

we must conclude substantial evidence exists to support the ALJ’s finding as

adopted by the Board.

b

Second, even supposing that Mr. Lopez did receive the October 12 letter as

the union insists, it would make no difference. The deficiencies of the November

1 letter were equally present in, not cured by, the October 12 correspondence.

Take for example the question of how the union calculated the amount Mr. Lopez

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owed. The October 12 letter claimed that Mr. Lopez owed $145, but offered no

explanation of how that amount was calculated, other than to say that $120 of the

amount was attributable to “late dues” and $25 was attributable to “reinstatement

fees.” No explanation how the union calculated these numbers was included, nor

any information about which months’ dues were past due, as the NLRB requires.

Compounding the problem, the October 12 letter claimed Mr. Lopez owed $145,

but less than three weeks later the union sent its November 1 letter claiming Mr.

Lopez owed $415 dollars. Though the digits in the two letters were the same,

they were reshuffled and the amount due nearly tripled — with no explanation

given to Mr. Lopez for the difference. Equally problematic, the October 12 letter

did no better job than the November 1 letter in affording Mr. Lopez a reasonable

deadline for payment: to the contrary, just like the November 1 letter, the

October 12 letter purported to seek Mr. Lopez’s immediate discharge. Far from

fulfilling the union’s fiduciary obligations, then, the October 12 letter failed those

obligations, just as the November 1 letter had.

3

Even if the October 12 letter doesn’t help its cause, the union argues that it

told Mr. Lopez how his fees, dues, and any penalties would be calculated when he

first joined the union in June 2006. From this information, the union submits, Mr.

Lopez could have “figured out” how it arrived at the $415 figure mentioned in the

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November 1 letter. And, the union says, the NLRB has never required more than

this for unions to discharge their fiduciary obligations.

The problem is that it has. The NLRB has long held that, in addition to any

duties the union owes to employees at the time of hiring, the union owes and must

discharge the fiduciary obligations set forth above, see supra Part II.A, when it

sets out to threaten, or take any action toward seeking, an employee’s discharge

under a union-security agreement. Claims that the employee knew or could have

gleaned information from other sources or earlier communications will not suffice

to discharge these obligations. As our sister circuit has explained, whether an

employee already knows the information the union’s fiduciary duties obliges it to

provide “is irrelevant. The Board has articulated a prophylactic rule that obviates

the need to inquire into [the employee’s] subjective knowledge” and focuses

instead on the “bright-line” question whether the union itself has discharged its

fiduciary functions. Int’l Bhd. of Elec. Workers, 61 F.3d at 44. See also Blue

Grass, 299 NLRB at 723; NLRB v. Local 1445, United Food & Commercial

Workers, 647 F.2d at 217; NLRB v. Constr. & Bldg. Material Teamsters Local No.

291, 633 F.2d 1295, 1298-99 (9th Cir. 1980). Neither has the union challenged

the Board’s substantial body of precedent on this score as an impermissible or

unreasonable interpretation of the NLRA. Accordingly, it is our duty to apply

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those precedents faithfully, and doing so we cannot help but agree with the NLRB

that the union failed to abide them in this case. 4

***

The union’s petition for review is denied and the NLRB’s cross-petition for

enforcement is granted.

4
Even if Mr. Lopez’s subjective knowledge were somehow relevant, the
union claims only that he had knowledge sufficient to allow him to calculate and
understand his past due amounts. It does not point to any record evidence that
Mr. Lopez was ever told, at the time of hiring or otherwise, that he was entitled to
a reasonable period to pay these overdue dues. Meanwhile, on both November 1
and 14, the union purported to claim the authority to seek Mr. Lopez’s immediate
termination without affording him any reasonable opportunity to pay the overdue
amounts. That deficiency alone would suffice to support the NLRB’s conclusion
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.

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