Int'l Brotherhood of Electrical Workers Local 34 (Various (hiring hall))

ELECTRICAL WORKERS LOCAL UNION NO. 34 357 NLRB No. 45 401 International Brotherhood of Electrical Workers, Local Union No. 34, AFL–CIO and Internation- al Brotherhood of Electrical Workers, AFL– CIO and John Lugo. Cases 13–CB–018961 and 13–CB–018962 August 10, 2011 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS BECKER, PEARCE, AND HAYES On December 19, 2008, Administrative Law Judge William G. Kocol issued the attached decision. The Re- spondents, International Brotherhood of Electrical Work- ers Local 34 (Local 34), and International Brotherhood of Electrical Workers (IBEW or the International), and the Charging Party, John Lugo, filed exceptions and sup- porting, responding, and reply briefs, and the General Counsel filed a responding brief.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs, and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order. We agree with the judge that Local 34 violated its duty of fair representation and Section 8(b)(1)(A) of the Act by maintaining and enforcing a requirement that non- member employees represented by the Union renew an- nually their objections filed under Communications Workers v. Beck.2 In this respect, we find that the case is governed by Machinists Local Lodge 2777 (L-3 Commu- nications), 355 NLRB 1076 (2010), which issued after the judge’s decision. We find, however, that the judge erred in dismissing the complaint, sua sponte, with re- spect to IBEW. Contrary to the judge, we find that IBEW is jointly liable for the violation. We address these two issues in turn. I. THE ANNUAL RENEWAL REQUIREMENT After setting out the material facts and the parties’ ar- guments, we explain why the annual renewal require- ment here was unlawful. A. In nearly all material respects, the Unions’ Beck objec- tion procedure is similar to that at issue in L-3. Repre- sented employees are obligated to pay dues (or agency fees) to their local unions pursuant to the union-security 1 Pursuant to Reliant Energy, 339 NLRB 66 (2003), we have accept- ed both Lugo’s postbrief letter calling our attention to recent case au- thority and the Unions’ letter response. 2 487 U.S. 735 (1988). provisions in the locals’ respective collective-bargaining agreements. Full dues include $11 per month for the International and an additional amount for the local. Pursuant to Beck, the Unions have a procedure— established by the International, and binding on IBEW local unions—for nonmember represented employees to object to the spending of their dues money for any pur- pose unrelated to collective bargaining or contract ad- ministration. Employees who send timely written objec- tions to the International receive a proportional reduction of their dues. The procedure requires objectors to renew their objections annually with IBEW each November in order for the objection to remain effective for the follow- ing calendar year. The International publishes an annual notice of Beck rights, including the annual November renewal obliga- tion, in its October newspaper, which is mailed to all members and nonmembers who pay dues or fees. Locals provide the same information to new hires at the time they become part of a bargaining unit.3 The International informs each local of all objections and timely renewals it receives from the local’s jurisdiction. When an objec- tor’s local is informed of his objection, the local sends the objector an acknowledgment and a copy of the objec- tion procedure, referencing the November renewal re- quirement and enclosing a copy of the previous October notice from the International’s newspaper. In one respect emphasized by the Unions, their objec- tion procedure differs from the one found unlawful in L- 3. When an objector files a timely objection or renewal, the International sends him an advance refund equal to the total reduction in dues paid to the International the objector would receive if he remained employed and paid reduced Beck fees for the duration of the forthcoming calendar year. This advance refund permits the local to lawfully collect the same amount of monthly per capita dues to the International during that year from objectors as from nonobjectors. However, by opting for this ap- proach the Unions run the risk of refunding too much money to objectors who leave represented employment during the year and thereby cease to be covered by an IBEW union-security clause. IBEW’s local unions have their own procedures for re- funding the nonchargeable portion of their share of in- coming dues. Some, including Local 34, follow the In- ternational’s procedure and provide advance refunds for the year, while others ask the objectors’ employers to 3 The procedure also permits an employee to file a Beck objection up to 30 days after first being hired or after resigning membership and to receive a proportional dues reduction for the rest of the calendar year before becoming subject to the November renewal requirement. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 402 reduce objectors’ monthly deductions from the objectors’ pay. After working as an IBEW member for 14 years, Lugo resigned his membership and filed a Beck objection with the International on June 8, 2007, requesting that his ob- jection be treated as “permanent and continuing [in] na- ture.” His objection was recognized and processed and, after communication with the International that included notice of the annual renewal requirement, the Interna- tional refunded the appropriate amount of his per capita dues for the period running back to his resignation date and forward to the following November. Local 34 sent a similar refund from its share of his dues for the same period. The International reminded Lugo, however, that his objection was subject to the annual renewal require- ment. Therafter, Lugo filed charges alleging that the Unions’ imposition of the annual renewal requirement on him violated his Section 7 rights and the Unions’ duty of fair representation under Section 8(b(1)(A) of the Act. The General Counsel’s complaint alleged the same. With respect to the Unions’ justification for the annual renewal requirement, an IBEW official who directs the Union’s per capita department testified without contra- diction: We need to know that the individual still wants to re- ceive the per capita reduction [and] that the individual is still employed and paying dues and fees. And we want to verify the individual’s address. But most im- portantly, the up front annual reduction is, or should I say the renewal requirement is closely tied to the fact that we pay them up front. The two are interrelated and they work as one plan. Asked to explain what he meant in referring to whether an objector “still wants to receive the per capita reduction,” the IBEW official elaborated: My experience, and I’ve spoken with a lot of people because they call in and ask how to do the process and the telephone calls are referred to me, my experience is that many of these people change their mind for various reasons. Either they want to be a member or they want to vote, contract, or they just want to be involved in the collective bargaining process with their peers, or they don’t care to receive the payment anymore. With respect to confirming an objector’s employment status, the IBEW official said that IBEW receives the locals’ monthly per capita reports “at least one month later . . . [a]nd by the time all of the reports are received, several months have transpired. So, an individual could have left the unit and we wouldn’t know about it for two to three months.” He noted that “some of these people have [objected] after they retired.” It would not be effi- cient for IBEW to attempt to obtain confirmation of con- tinued employment and current address from the locals at the end of each year, he continued, because we have so many different locals of so many different sizes. And people change addresses constantly. . . . So, the problem would come in with the smallest of the lo- cal unions, and these are the ones we have to be con- cerned with not replying to our correspondence in time to honor the individual’s request. The Unions also argue that the annual renewal re- quirement is justified by legal authority prior to L-3, which stated or suggested that the requirement is lawful.4 The General Counsel’s complaint alleges that the Un- ions’ annual objection renewal requirement “constitutes an arbitrary restriction on an employee’s right to refrain from union membership and from supporting nonrepre- sentational expenditures.”5 B. L-3 reaffirmed that the Board applies the duty-of-fair- representation standard in Beck cases. (355 NLRB 1076, 1077.) A union breaches that duty if its actions affecting employees whom it represents are “arbitrary, discrimina- tory, or in bad faith.” Id. at 1078. An action is arbitrary, in turn, “only if, in light of the factual and legal land- scape at the time of the union’s actions, the union’s be- havior is so far outside a ‘wide range of reasonableness’ as to be irrational.” Id., quoting Airline Pilots Assn. v. O’Neill, 499 U.S. 65, 67 (1991). With respect to annual renewal requirements, the L-3 Board did not “announc[e] a per se rule,” but chose instead to “proceed on a case- by-case basis.” Id. at 1076. As L-3 and our subsequent decision in Auto Workers Local 376 (Colt’s Mfg. Co.), 356 NLRB 1320, 1322 (2011), illustrate, if the burden imposed on employees by an annual renewal requirement is more than de minimis, the Board evaluates a union’s proffered justifications for the requirement, considered in the context of the particular Beck procedures involved. 1. It is clear that the annual renewal requirement at is- sue here, like that involved in L-3, and unlike that in Colt’s, imposes more than a de minimis burden on objec- tors. As in L-3, an objector must remember to mail a statement of renewed objection to the IBEW each year 4 E.g., Abrams v. Communications Workers, 59 F.3d 1373, 1381– 1382 (D.C. Cir. 1995). 5 The General Counsel does not contend that the Unions’ annual re- newal requirement is “discriminatory” or in “bad faith” in violation of their duty of fair representation. ELECTRICAL WORKERS LOCAL UNION NO. 34 403 during a designated 1-month period specified in the Un- ions’ procedure. A failure to send a timely renewal re- sults in the loss of opportunity to receive a dues reduc- tion for 11 months, until the renewal period recurs. Fur- ther, the Beck procedure in the instant case does not fur- nish objectors with multiple notice and reminders of the annual renewal requirement, as was the case with the Beck procedure at issue in Colt’s Mfg. It was those fea- tures that led the Board in Colt’s Mfg. to find that the burden imposed by the requirement there was de mini- mis, and that it was hence unnecessary to weigh the un- ion’s proffered justifications for the requirement. (356 NLRB 1320, 1322.) 2. Accordingly, absent procedures to minimize the burden imposed on objectors similar to those in Colt’s Mfg., we turn to the Unions’ proffered justifications for requiring annual renewal. None are sufficient to save the requirement. The Unions argue that the annual renewal requirement is necessary to confirm objectors’ employment status and their current addresses, but we rejected a similar argu- ment in L-3. (See 355 NLRB 1076, 1079–1080.) Here, the Unions claim to have a heightened stake in knowing that objectors remain employed due to their advance re- bate system. But the annual renewal requirement is a poor instrument for achieving the asserted objective. Objectors who quit or otherwise leave employment at any time after renewing their objection and before the next annual renewal date will receive an advance rebate some part of which they are not due even with the annual renewal requirement in place. Moreover, at any time during the year or periodically throughout the year, the Unions can request a list of current or, alternatively, sep- arated employees from employers and the employers will have a legal obligation to supply the list in a timely fash- ion. In fact, at the end of the year and before paying the advance rebates, the Unions could ask the employers to confirm that all objectors who previously expressed a continuing objection remain employed. As in L-3, there- fore, the Unions have provided no evidence to show that the annual objection requirement is the most cost- effective or otherwise efficient means of obtaining such information. Id. L-3 is also dispositive of the Unions’ contention that the annual requirement is justified by preexisting legal authority. We noted there that the General Counsel’s choice in California Saw & Knife Works, 320 NLRB 224 (1995),6 not to argue that an annual renewal requirement was unlawful did not insulate such requirements from 6 Enfd. sub nom. Machinists v. NLRB, 133 F.3d 1012 (7th Cir. 1998), cert. denied sub nom. Strang v. NLRB, 525 U.S. 813 (1998). subsequent Board scrutiny. (355 NLRB at 1080.) As we observed, the Board has the primary responsibility for establishing national labor policy, and court cases—to which the Board was not a party—do not preclude our independent assessment of the issue presented here. Id. Next, the Unions advance a slight variation of an ar- gument made in L-3. The Unions’ argue that the annual renewal requirement serves the Unions’ interest in ensur- ing that they do not give the Beck reduction to employees who no longer want it, and thus ensures that they are not unnecessarily paying advance rebates. In essence, this is the same argument advanced and rejected in L-3, that the annual renewal requirement is justified by the fact that some objectors change their minds after the passage of time. L-3, supra at 1080. Moreover, here, the Unions have failed to establish a factual basis for this justifica- tion. The IBEW official’s testimony that some objectors change their minds over time was based on direct experi- ence with employees who communicated their change of mind to IBEW and asked to be restored to full dues sta- tus. Those employees demonstrated by their actions that an annual renewal requirement was not necessary to pre- clude their receiving, and the Unions paying, unwanted advance reductions. Rather, the evidence showed that many employees who change their mind directly contact the IBEW and affirmatively inform it that they no longer wish to receive reduced dues under Beck. The Unions did not present evidence that a significant number of objectors change their minds but do not choose to com- municate this to IBEW. The Unions would benefit from the annual requirement only with respect to such individ- uals.7 Moreover, the Unions remain free to ask non- members who have registered a continuing objection whether they wish to withdraw the objection after a year or, indeed, at any time. For these reasons we find that the Unions have failed to establish a reasonable basis for the annual Beck re- newal requirement. Because the requirement is arbitrary, it violates the Unions’ duty of fair representation and Section 8(b)(1)(A) of the Act. II. LIABILITY OF IBEW On his own initiative, the judge dismissed the com- plaint with respect to the IBEW, reasoning that only Lo- cal 34, as the sole collective-bargaining representative of 7 Nor, contrary to the Unions’ assertion, is the “unwanted reduction” justification supported by the fact that the Unions provide an advance refund of the total amount of the following year’s Beck reduction to objectors. The Unions are under no legal requirement to pay an advance refund. Their choice of this mechanism assumes the risk of giving an advance reduction to some employees who no longer want it. It cannot justify imposing the annual renewal requirement on all objectors. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 404 employees here, had a duty of fair representation.8 We disagree, for the reasons that follow.9 It is undisputed that at least since 1992, the IBEW has been primarily responsible for establishing and imple- menting the Beck procedure involved in this case, and that IBEW locals, including Local 34, rely on the IBEW to satisfy their duties under Beck and, indeed, are re- quired to conform to the IBEW’s procedures. Under settled precedent, this role and relationship suf- fice to make the IBEW liable here. In California Saw & Knife Works, supra, in which the Board established the essential standards for implementing Beck’s require- ments, the Board found that the international union, along with several of its local unions, had acted unlaw- fully with respect to their Beck procedure, even though “[i]n most cases, the [local unions] are the entities that are certified as the exclusive representatives of the mem- bers.” 320 NLRB at 230. Cf. Allen v. Allied Plant Maintenance Co. of Tennessee, Inc., 881 F.2d 291, 297 (6th Cir. 1989) (International assumed duty of fair repre- sentation by fulfilling local’s functions in contractual grievance-arbitration process).10 We therefore find that the judge erred in dismissing the complaint with respect to IBEW, and that IBEW is jointly liable for the violation we have found with respect to the Unions’ annual renewal requirement.11 ORDER The Respondents, International Brotherhood of Elec- trical Workers, Local Union No. 34, AFL–CIO, and the International Brotherhood of Electrical Workers, AFL– CIO, their officers, agents, and representatives, shall 1. Cease and desist from (a) Requiring nonmember employees, who are covered by a collective-bargaining agreement containing a union- 8 As the judge observed, the complaint alleged that Local 34 was “the exclusive collective-bargaining representative [which] has main- tained and enforced collective-bargaining agreements with various electrical contractors.” Local 34 was the only union signatory to the agreement that appears in the record. 9 The Unions did not contend before the judge that the International bore no responsibility for the Beck administrative procedure at issue. Moreover, the Unions did not move or argue for dismissal of the Inter- national at any time before the judge issued his decision. And while the International argues before the Board in support of the judge’s ruling, it also concedes that it assumed the duty of treating objectors fairly: “the International made a considered decision to assume the responsibility to ensure that, regardless of the administrative capacity of their respective local unions, all objectors were treated fairly.” 10 The cases relied upon by IBEW do not involve the lawfulness of Beck procedures established and implemented by an International union and conformed to by a local union. 11 We will substitute an order requiring the remedial notice to be posted at Local 34’s office and hiring hall, in the absence of record evidence identifying relevant employers at whose facilities the notice could be posted. security clause and who object to the payment of dues and fees for nonrepresentational activities, to renew their objections on an annual basis under the Unions’ existing annual renewal procedure. (b) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the existing requirement that objecting nonmember employees renew their objection on an an- nual basis. (b) Notify nonmember employees who are subject to a union-security clause, by publication in the Internation- al’s newspaper, that the existing annual renewal require- ment for objections to payment of dues and fees for non- representational activities has been rescinded. (c) Recognize John Lugo as a continuing objector and continue to recognize his objector status until he revokes his objection or the Respondents implement a lawful annual renewal requirement, whichever occurs earlier. (d) Within 14 days after service by the Region, post at its union office in Milton, Florida, copies of the attached notice marked “Appendix.”12 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondents’ authorized repre- sentatives, shall be posted by the Respondents and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees and members are customarily posted. In addition to physical posting of paper notices, notices shall be distributed elec- tronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Re- spondent customarily communicates with its members by such means.13 Reasonable steps shall be taken by the Respondents to ensure that the notices are not altered, defaced, or covered by any other material. (e) Within 21 days after service by the Region, file with the Regional Director sworn certifications of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondents have taken to comply. 12 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 13 For the reasons stated in his dissenting opinion in J. Picini Floor- ing, 356 NLRB 11 (2010), Member Hayes would not require electronic distribution of the notice. ELECTRICAL WORKERS LOCAL UNION NO. 34 405 MEMBER HAYES, concurring. I agree with my colleagues that the Respondents’ rule requiring Beck1 objectors to renew their objections annu- ally was arbitrary and thus breached their duty of fair representation in violation of Section 8(b)(1)(A) of the Act. I would also find, for the reasons fully set out in the dissenting opinions in Machinists Local Lodge 2777 (L-3 Communications), 355 NLRB 1076, 1087–1089 (2010), and in my dissent in Auto Workers Local 376 (Colt’s Mfg. Co.), 356 NLRB 1320, 1323–1325 (2011), that the Respondent’s rule was discriminatory. As also stated in my dissent in Colt’s Mfg., I would further find that the annual renewal requirement infringes on employees’ fundamental Section 7 right to refrain from assisting a union and must therefore be analyzed under Section 8(a)(3) and (b)(1)(A) rather than under the more deferen- tial duty of fair representation standard applied here by the majority. Id. at 1081. MEMBER PEARCE, dissenting. Although I agree with the majority that the appropriate legal framework for analyzing this case is the duty of fair representation under Section 8(b)(1)(A), for the reasons set forth in my dissenting opinion in Machinists Local Lodge 2777 (L-3 Communications), 355 NLRB 1076, 1089–1091 (2010), I would dismiss the 8(b)(1)(A) alle- gation that the Union breached its duty of fair representa- tion by requiring the Charging Parties to renew their Beck objections annually. Because the General Counsel bears the burden of prov- ing that the Union’s action was arbitrary, discriminatory, or in bad faith, and as the Union’s annual-renewal re- quirement rationally serves its legitimate interests and was well supported by legal precedent at the time of its actions, I find that this burden has not been met. Indeed, as in L-3 Communications, I find that it is manifestly unjust to find a violation here. Accordingly, I respectfully dissent. APPENDIX NOTICE TO MEMBERS AND EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union. 1 Communications Workers v. Beck, 487 U.S. 735 (1988). Choose representatives to bargain on your behalf with your employer. Act together with other employees for your bene- fit and protection. Choose not to engage in any of these protected activities. WE WILL NOT require nonmember employees, who are covered by a collective-bargaining agreement containing a union-security clause and who object to the payment of dues and fees for nonrepresentational activities, to renew their objections on an annual basis under our existing annual renewal procedure. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL rescind the existing requirement that object- ing nonmember employees renew their objection on an annual basis. WE WILL notify nonmember employees who are sub- ject to a union-security clause, by publication in the In- ternational’s newspaper, that the existing annual renewal requirement for objections to payment of dues and fees for nonrepresentational activities has been rescinded. WE WILL recognize John Lugo as a continuing objector and continue to recognize his objector status until he revokes his objection or we implement a lawful annual renewal requirement, whichever occurs earlier. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL–CIO AND ITS LOCAL UNION NO. 34, AFL–CIO Kevin McCormick, Esq., for the General Counsel. Victoria L. Bor, Esq. (Sherman, Dunn, Cohen, Leifer & Yellig, P.C.), of Washington, D.C., for the Respondents. Matthew C. Muggeridge, Esq. (National Right to Work Legal Defense Foundation), of Springfield, Virginia, for the Charging Party. DECISION STATEMENT OF THE CASE WILLIAM G. KOCOL, Administrative Law Judge. This case was tried in Chicago, Illinois, on October 27, 2008. The charg- es were filed by John Lugo, an individual (the Charging Party), on June 10, 2008,1 and the order consolidating cases, consoli- dated complaint, and notice of hearing (the complaint) was issued August 28. The complaint as amended at the hearing alleges that the International Brotherhood of Electrical Work- ers, Local Union No. 34, AFL–CIO (Respondent Local) and the International Brotherhood of Electrical Workers, AFL–CIO (Respondent International) (and jointly Respondents) violated Section 8(b)(1)(A) of the Act by informing employees subject 1 All dates are in 2008, unless otherwise indicated. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 406 to a union-security provision that in order to become and re- main a Beck objector nonmember employees must renew their objections annually during November of the preceding calendar year, thereby breaching the fiduciary duty they owe to repre- sented employees. Respondents’ answer admits the allegations in the complaint concerning the filing and service of the charg- es, interstate commerce and jurisdiction, labor organization and agency status, and the maintenance of collective-bargaining agreements by Respondent Local with union-security provi- sions. Respondents also admit that each advised nonmember employees of their obligation to renew their Beck objections annually in November but denied that this violated the Act. I note that there is no allegation in the complaint that Re- spondent International represents any employees or has any collective-bargaining agreements with employers that include union-security provisions. This fact becomes important in as- sessing whether Respondent International owes a duty of fair representation to any employees. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, Respondents, and the Charging Party, I make the following FINDINGS OF FACT I. JURISDICTION The Oberlander Electric Company, Inc., a corporation, per- forms electrical work out of its facility in East Peoria, Illinois, where it annually purchases and receives goods and materials valued in excess of $50,000 from other enterprises located within the State of Illinois, each of which enterprises receives those goods and materials directly from points outside Illinois. The Respondents admits and I find that Oberlander is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that Respondent Local and Respondent International each is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Facts There are about 906 local unions affiliated with Respondent International; the local unions vary in size from 7 to 30,000 members. Some local unions have full-time paid officers and staff while others have part-time officers who are paid very little. The local unions are charged with the responsibility of collecting all dues and enforcing the union-security provisions in collective-bargaining agreements. Members pay $11 per month to Respondent International and the local unions deter- mine what additional amounts should be added as local dues. Respondents spend money collected under union-security provisions contained in collective-bargaining agreements on matters not germane to their representational duties. Respond- ents have procedures for nonmember employees who exercise their rights under Communications Workers v. Beck, 487 U.S. 735 (1988), to pay only that portion of dues Respondents spend on representational duties. These procedures require objecting nonmember employees to annually renew their objections dur- ing November to be effective for the following year. The an- nual renewal procedures apply to all of Respondent Interna- tional’s affiliated local unions in the United States. Respondent International publishes an annual notice in its newspaper that it mails to all members and nonmembers who pay dues or fees to any local union. This annual notice advises the employees among other things, of their Beck rights, including the obliga- tion to annually renew their objection during November. Local unions provide the same information to every new employee who becomes part of a bargaining unit. Dmytro Halkyn is director of per capita department for Re- spondent International. Halkyn explained that before 1992 Respondents’ procedures required Beck objectors to file their objections with the local unions as well as Respondent Interna- tional in order to get a reduction in the dues of the local union and International, respectively. But after a series of complaints issued by the General Counsel against local unions the proce- dures were revised pursuant to a settlement agreement to pro- vide for only a single notice in order to get reductions for both the International and local portions of the dues. The revised procedures provided for objections to be filed with Respondent International to assure a measure of uniformity in the manner in which the objections were processed. But the annual renewal part of the objector procedures existed before the settlement and continued to remain in effect afterwards; they were not part of the litigation. Under Respondent International’s dues reduc- tion procedures each January objectors are sent checks for the amount of reduction for an entire year. This allows Respondent International to collect the same amount of dues during that year from objectors and nonobjectors alike. The downside, however, to this procedure is that employees may not remain covered by the union-security provision for the entire year and may therefore receive the partial dues remission when the em- ployees did not pay dues. The local unions are allowed to cre- ate their own procedures concerning how they return non- chargeable portions of dues to Beck objectors. Some local un- ions provide upfront reductions while others reduce the pay- ments made by objectors. Lugo works as a journeyman electrician and has used the Respondent Local’s hiring hall to obtain employment with various employers who are signatories to collective-bargaining agreements with it. On about June 8, 2007, Lugo exercised his Beck rights. The Respondents eventually recognized Lugo’s Beck objections and refunded to him a portion of the dues he had paid.2 B. Arguments and Analysis In his brief, the General Counsel states that the complaint does not challenge Respondents use of the November window period but argues that: The Respondents’ requirement that nonmember Beck objec- tors renew their objections every year constitutes an arbitrary restriction on an employee’s right to refrain from union mem- bership and from supporting nonrepresentational expendi- tures. 2 There is no allegation that manner in which Respondents processed Lugo’s Beck objections was unlawful. ELECTRICAL WORKERS LOCAL UNION NO. 34 407 The Board has yet to address this specific issue but there have been a number of court cases that have addressed this matter; they have come down on both sides of this issue. Those cases are described by Judge Biblowitz in his decision in Auto Work- ers (Colt’s Mfg. Co.), JD (NY)–06–08 (March 3, 2008), and need not be repeated here. In that case Judge Biblowitz con- cluded that the annual renewal obligation violated Section 8(b)(1)(A). In Auto Workers, Local Lodge 2777 (L-3 Commu- nications Vertex Aerospace), JD (ATL)–02–08, Judge Marcio- nese also concluded the union there violated Section 8(b)(1)(A) by requiring annual Beck objections. Finally, in General Truck Drivers, Local No. 952 (Albertson’s), JD(SF)30–06 (May 30, 2006), I concluded in a different factual setting that the annual renewal obligation violated Section 8(b)(1)(A). The General Counsel points by analogy to restrictions found unlawful by the Board in California Saw & Knife Works, 320 NLRB 224 (1995),3 such as requirements that Beck objectors file their objections individually and by certified mail. In Polymark Corp., 329 NLRB 9 (1999), revd. in part on other grounds sub nom. Mahat v. NLRB, 248 F.3d 1150 (6th Cir. 2000), the Board specifically affirmed its conclusion in Cali- fornia Saw that a union violates its duty of fair representation when it imposes a window period limitation on an employee who recently resigned his membership in a union and who had also filed Beck objections. I next emphasize the narrowness of the complaint allega- tions. The complaint does not allege that Respondents directly restrained or coerced employees in the exercise of their Section 7 right to become and remain Beck objectors. Rather, the com- plaint alleges only that Respondents breached their duty of fair representation by requiring annual renewal of Beck objections. As Respondents point out in their brief, the legal analysis in ascertaining a breach of a duty of fair representation is different from the analysis of a violation of a Section 7 right. The test for the former affords a union a wide range of reasonableness. Marquez v. Screen Actors Guild, 525 U.S. 33, 45 (1998); Vaca v. Sipes, 386 U.S. 171, 177 (1967). By framing the complaint as he does the General Counsel is implicitly conceding the Section 7 right to become and remain a Beck objector is qualita- tively different from the Section 7 right to resign from member- ship in a union. The latter is an unfettered right, Pattern Mak- ers v. NLRB, 473 U.S. 95 (1985), Machinist Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984); the former may be encumbered so long as the encumbrances are not arbi- trary or invidious. The Board has not yet differentiated be- tween in this area between the Section 7 right to become and remain a Beck objector and notice requirements concerning this right that emanate from the duty of fair representation. So I test the annual renewal requirement under the duty of fair represen- tation. I therefore do not apply what might otherwise have been persuasive arguments made in the Charging Party’s brief concerning why the right to become and remain a Beck objector should be treated the same as the right to resign from union membership. 3 Enfd. sub nom. Machinists v. NLRB, 133 F.3d 1012 (7th Cir. 1998), cert. denied sub nom. Strang v. NLRB, 525 U.S. 813 (1998). Having identified the legal analysis I will apply in this case, I note that the Respondents argue that it is the local unions, and not Respondent International, that has the duty of fair represen- tation. In this regard the complaint supports this contention as it only alleges that Respondent Local represents employees. It does not allege, nor is there evidence, that Respondent Interna- tional represents any employees, jointly with the local unions or otherwise. Neither the General Counsel nor the Charging Party explains in this case how a duty of fair representation applies to Respondent International. It follows that the complaint must be dismissed as it pertains to Respondent International. I now turn to address whether the yearly renewal require- ment breaches Respondent Local’s duty of fair representation. Respondents argue that the annual renewal requirement should be viewed in context of their overall framework for handling Beck objections and that those overall procedures easily fall within a careful exercise of their duty of fair representation. One may concede that Respondents’ Beck procedures are gen- erally an acceptable exercise of a duty of fair representation. But this does not shield component parts of those procedures from examination. Stated differently, Respondents may not imbed an arbitrary procedure in an otherwise reasonable pro- gram and expect the arbitrary procedure to escape scrutiny. Next, Respondents argue: [T]he procedures that the IBEW and its local unions have put in place to administer fee objections including the annual re- newal requirement are neither unfair, arbitrary nor invidious. Instead, the procedures were adopted by the International and made applicable to all of its local unions as a way of best as- suring that in this large union with autonomous local unions of every size and level of staff, the rights of objecting non- members are honored. Thus, the International developed a plan which was designed to assist local unions in fulfilling their obligations to represent non-members that it believed would best assure that objectors receive the information and the reductions to which they are entitled in a systematic and dependable way. To support this argument Halkyn testified that Respondents maintain the annual requirement because: We need to know that the individual still wants to receive the per capita reduction. We need to know that the individual is still employed and paying dues and fees. And we want to ver- ify the individual’s address. But most importantly, the up front annual reduction is, or should I say the renewal require- ment is closely tied to the fact that we pay them up front. The two are interrelated and they work as one plan. But it is Respondent Local that owes the duty of fair representa- tion in this case; it can not pass off that duty to Respondent International. As the Charging Party points out in his brief, the: [A]dministrative rationales offered by Respondent dealt with the Union’s need to verify the objector’s job and contact in- formation. It can be conceded that some administrative pur- pose may exist for requesting and obtaining such information. What cannot be explained, however, is how the mandatory annual renewal of objection policy furthers or is related to the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 408 administrative need to maintain accurate employment and contact information for the represented employees. Certainly Respondent Local is in a position to easily ascertain whether a unit employee continues to be employed and to maintain, so far as possible, current address information with- out maintaining the annual renewal requirement. Indeed, Re- spondent International has address and employment status in- formation that it uses to satisfy its Beck and General Motors notice requirements yet it does not explain why this same in- formation is not adequate concerning its dues remissions. Halkyn’s testimony says little concerning why Respondent Local, who after all collects both the local and international portion of the dues, needs the annual renewal provision for any purpose other than challenging the continuing nature of the Beck objection. By this requirement Respondent Local limits Beck objector status to a period of one year per objection even absent any indication that the objector desired to place any time limitation on the objection. A Beck objector is not a member of a union, and as such the Supreme Court has stated “[T]he union has no more control over the former member than it has over the man in the street.” NLRB v. Granite State Joint Board Lo- cal 1029, 409 U.S. 213, 217 (1972). Because the annual re- newal procedure serves no legitimate purpose it is arbitrary and breaches Respondent Local’s duty of fair representation. CONCLUSION OF LAW By informing Beck objectors that they must annually renew their objections, Respondent Local violated Section 8(b)(1)(A). REMEDY Having found that the Respondent Local union has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Charging Party argues that to remedy the violation Respondents should be required to reimburse all dues collected from Beck objectors who did not annually renew their objections. However there is no evidence that Respondent Local has actually collected full dues from Beck objectors who failed to annually renew their objections. Moreover, in his brief the General Counsel does not request any make whole remedy; instead he requests only a cease and desist order and notice posting. Certainly if there was evidence that Respondent Local actually collected full dues from the non- members who did not annually renew their objections the Gen- eral Counsel would have sought a make whole remedy. Under these circumstances I conclude there is no factual basis in this case to support a make-whole remedy. [Recommended Order omitted from publication.]