Natalie Ruisi, et al v. NLRB

Filing

OPINION [1675351] filed (Pages: 15) for the Court by Judge Edwards. [16-1031]

USCA Case #16-1031

Document #1675351

Filed: 05/16/2017

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 14, 2017

Decided May 16, 2017
No. 16-1031

NATALIE RUISI AND MICHAEL PELUSO,
PETITIONERS
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT

On Petition for Review of an Order
of the National Labor Relations Board

Aaron B. Solem argued the cause for petitioners. With him
on the briefs were Glenn M. Taubman and Alyssa K.
Hazelwood.
Kyle A. deCant, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the brief
were Richard F. Griffin, Jr., General Counsel, Jennifer
Abruzzo, Deputy General Counsel, John H. Ferguson,
Associate General Counsel, Linda Dreeben, Deputy Associate
General Counsel, and Robert J. Englehart, Supervisory
Attorney.
Before: KAVANAUGH and WILKINS, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

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Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: Petitioners Natalie Ruisi
and Michael Peluso (“Petitioners”) were employees of Host
International (“the Company”), which had a collective
bargaining agreement with the Local Joint Executive Board of
Las Vegas, representing the Culinary Workers Union, Local
226, and the Bartenders Union, Local 165 (“Union”). Ruisi and
Peluso signed Union dues-checkoff authorizations in 2004 and
2007, respectively, but they sought to revoke their
authorizations in 2013. In order to do this, Ruisi and Peluso
were required to submit written requests within 15 days of the
anniversary of the dates when they signed the authorizations.
Ruisi called the Union to find out the “Anniversary Dates” for
herself and Peluso. She was told that the requests needed to be
submitted in writing. She and Peluso then filed unfair labor
practice charges with the National Labor Relations Board
(“NLRB” or “the Board”), and the Board’s General Counsel
issued a complaint against the Union alleging multiple
violations of Section 8(b)(1)(A) of the National Labor
Relations Act (“the Act”), 29 U.S.C. § 158(b)(1)(A). The
Board found one violation and dismissed the remaining
charges.
In their petition for review, Ruisi and Peluso contend that
the NLRB erred in holding the Union did not violate its duty of
fair representation when it declined to provide them with their
Anniversary Dates over the telephone. They argue that “the
Union violated its duty of fair representation because its actions
were arbitrary, in bad faith, and discriminatory.” Br. of Pet’rs
at 10. In particular, they assert that a “Union cannot refuse to
provide employees with easily accessible, time-sensitive
information, over the telephone that is necessary to comply
with the Union’s self-imposed revocation procedure.” Id.

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The Board, in turn, says that, “applying the accepted dutyof-fair-representation standard for determining whether
internal union policies are unlawfully arbitrary, [it] reasonably
found that the Union’s policy was not so far outside a wide
range of reasonableness as to be irrational.” Bd. Br. at 10.
“Indeed, as the Board recognized in assessing the Union’s
policy, when . . . employee[s] request[] their authorization
date[s] from the Union, the Union has a need to ensure that it
provides the correct employee with the correct information.
Requiring that the request be in writing allows the Union to
properly verify the request and authenticate the date before
divulging it.” Id.
On the record before us, we hold that the Board reasonably
concluded that the Union’s disputed policy was not arbitrary.
The Board also reasonably found that the Union neither
discriminated against Ruisi and Peluso, nor acted in bad faith
in requiring the employees to submit written requests in order
to receive their authorization dates. Therefore, the Board did
not err in concluding that the Union did not breach its duty of
fair representation. Accordingly, we deny the petition for
review.
I.

Background

As noted above, Petitioners decided to resign their Union
memberships and revoke their dues-checkoff authorizations in
2013. Pursuant to established Union rules, Union members
could revoke their dues check-off authorization “by sending
written notice to both the Employer and the Union . . . during a
period of fifteen (15) days immediately succeeding” a
member’s Anniversary Date. Joint Appendix (“JA”) 217. The
Union stores paper copies of each member’s dated duescheckoff card, and also has some electronic copies scanned into
its database. The Union also sends copies of employee dues

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check-off authorizations to the Company’s payroll department.
If a Union member does not recall her Anniversary Date, she
may request the information from either the Union or the
employer.
When Ruisi telephoned the Union to find out the
Anniversary Dates for both herself and Peluso, she was told by
Wanda Henry, the Director of Operations, that the Union does
not provide that information over the telephone. Henry
informed Ruisi that she and Peluso could either submit a
written request for the dates or contact the Company’s payroll
department. Petitioners then called the payroll department, but
it provided them with the wrong dates, informing Ruisi and
Peluso that their Anniversary Dates were August 16 and March
8, respectively.
Based on this information, Peluso mailed his written
withdrawal to the Union on February 20, 2014. Unbeknownst
to him, his actual Anniversary Date was February 5, so he had
mailed his letter on the last day of his fifteen-day revocation
period. The Union determined, however, that Peluso’s
withdrawal was one day too late. On February 25, Henry called
Ruisi, whom Peluso had authorized to speak for him. Henry
informed Ruisi of Peluso’s actual Anniversary Date, and told
her that Peluso’s attempted withdrawal was untimely. Between
March 3 and June 23, 2014, Henry also mailed Peluso multiple
letters containing an explanation of this rejection and a copy of
his dues-checkoff card.
Petitioners then filed unfair labor practice charges with the
Board. The General Counsel issued a complaint against the
Union, alleging that it had unlawfully failed to honor Peluso’s
timely withdrawal, refused to provide Petitioners with their
Anniversary Dates, delegated to the Company the task of

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providing this information, and provided the Petitioners with
the wrong Anniversary Dates.
A hearing was held before an Administrative Law Judge
(“ALJ”). The ALJ recommended sustaining only the charge
that the Union had unlawfully refused to honor Peluso’s
withdrawal by miscalculating the applicable revocation period.
Local Joint Exec. Bd. of Las Vegas, Culinary Workers Union,
Local 226, & Bartenders Union, Local 165 (“Local Joint
Executive Board”), 363 NLRB No. 33, at 5 (2015). The ALJ
found no merit in the remaining charges and recommended that
they be dismissed. With regard to the allegation that the Union
violated its duty of fair representation when it refused to
provide Petitioners with their Anniversary Dates over the
telephone, the ALJ determined that the Union’s requirement
that such requests be in writing was not “arbitrary,” and
therefore unlawful, because it was not “so far outside ‘a wide
range of reasonableness’ to be irrational.” Id. (quoting Mail
Handlers Local 307, 339 NLRB 93 (2003)). The ALJ also
found that Henry had not deliberately frustrated Petitioners’
attempts to leave the Union, and made a point to distinguish the
facts in this case from those in Electrical Workers, Local 66,
262 NLRB 483 (1982).
The Board adopted the ALJ’s rulings, findings, and
conclusions. Local Joint Exec. Bd., 363 NLRB No. 33, at 1. It
agreed that the Union’s refusal to provide Anniversary Dates
absent a written request did not violate the duty of fair
representation, and additionally stated that this conclusion was
consistent with Board precedent. Id. at 1 n.1.
Ruisi and Peluso then filed this petition for review,
challenging only the Board’s finding that the Union’s
requirement that Anniversary Date requests be made in writing

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does not violate the duty of fair representation. We have
jurisdiction to decide this case pursuant to 29 U.S.C. § 160(f).
II.

Analysis

A. Standard of Review
Our role in reviewing a decision of the NLRB is limited.
“We will uphold the Board’s dismissal of an unfair labor
practice charge ‘unless its findings are unsupported by
substantial evidence in the record considered as a whole, or
unless the Board acted arbitrarily or otherwise erred in
applying established law to facts.’” United Food and
Commercial Workers Union Local 204 v. NLRB, 506 F.3d
1078, 1080 (D.C. Cir. 2007) (quoting Gen. Elec. Co. v. NLRB,
117 F.3d 627, 630 (D.C. Cir. 1997)) (internal quotation marks
omitted). Substantial evidence requires enough “relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Micro Pac. Dev. Inc. v. NLRB, 178 F.3d
1325, 1329 (D.C. Cir. 1999) (citation omitted).
Under this deferential standard of review, we will reverse
the Board “only when the record is so compelling that no
reasonable factfinder could fail to find to the contrary.” Bally’s
Park Place, Inc. v. NLRB, 646 F.3d 929, 935 (D.C. Cir. 2011)
(quoting United Steelworkers of Am. v. NLRB, 983 F.2d 240,
244 (D.C. Cir. 1993)) (quotation marks omitted). Finally,
“[w]here, as here, the Board adopts the ALJ’s findings and
conclusions as its own, we apply the same deferential standard
to those findings and conclusions.” Weigand v. NLRB, 783 F.3d
889, 895 (D.C. Cir. 2015).

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B. The Union Did Not Violate Its Duty of Fair
Representation
The duty of fair representation is not found in any express
provision of the NLRA, but is instead a judicially-created
doctrine which derives from a union’s status under Section 9(a)
of the Act as the exclusive bargaining representative of a unit
of employees. See 29 U.S.C. § 159(a); Marquez v. Screen
Actors Guild, 525 U.S. 33, 44 (1998). The core requirement of
the duty of fair representation is that a union must “represent
all members fairly.” Marquez, 525 U.S. at 44. The duty of fair
representation was first articulated in a case involving a charge
of race discrimination against a union. See Steele v. Louisville
& Nashville R.R. Co., 323 U.S. 192 (1944). However, the duty
“has grown enormously in scope since 1944 . . . from avoiding
racial discrimination to providing daily representation.” Int’l
Union of the United Ass’n of Journeymen & Apprentices of the
Plumbing & Pipefitting Indus. v. NLRB, 675 F.2d 1257, 1264
(D.C. Cir. 1982).
A union breaches its duty of fair representation when it
engages in conduct towards a member that is “arbitrary,
discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171,
190 (1967). “Arbitrary,” “discriminatory,” and “bad faith” are
separate prongs of the duty of fair representation, each
requiring independent analysis. Crider v. Spectrulite
Consortium, Inc., 130 F.3d 1238, 1243 (7th Cir. 1997) (stating
that each prong must be individually assessed); see Marquez,
525 U.S. at 44 (reaffirming this tripartite standard). Parties who
seek to prove a breach of the duty of fair representation bear a
heavy burden. Petitioners concede this. See Br. of Pet’rs at 24–
26 (discussing “bad faith” and “discriminatory” tests); Oral
Arg. at 3:37–4:10 (counsel for Petitioners conceding that the
“arbitrary” test is difficult to meet).

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In this case, Petitioners invoke all three prongs of the duty
of fair representation. They contend that the Union’s policy of
refusing to provide Anniversary Dates absent a written request
is arbitrary, unlawfully discriminates against employees who
wish to leave the Union, and reflects bad faith on the part of
Union officials whose aim is to complicate the withdrawal
process in order to prevent employees from revoking their
memberships. We find no merit in these claims.
1. The Union’s policy is not arbitrary
Petitioners’ principal claim is that the Union violated the
duty of fair representation because its policy of providing
Anniversary Dates only after receiving a written request is
arbitrary. This claim fails. “[A] union’s actions are arbitrary
only if, in light of the factual and legal landscape at the time of
the union’s actions, the union’s behavior is so far outside a
wide range of reasonableness as to be irrational.” Air Line
Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 (1991) (citation
and quotation marks omitted); accord Mail Handlers Local
307, 339 NLRB at 93. To survive an arbitrariness challenge, a
union need not “prove ‘that the choices it makes are better or
more logical than other possibilities,’ but, instead, that the
union ‘act[s] on the basis of relevant considerations,’ not
arbitrary ones.” Thomas v. NLRB, 213 F.3d 651, 656 (D.C. Cir.
2000) (quoting Reading Anthracite Co., 326 NLRB 1370, 1370
(1998)). Petitioners do not come close to showing that the
Union violated its duty of fair representation in this case.
The ALJ credited the testimony of Henry, who explained
that she follows a standard procedure in refusing to give out
Anniversary Dates over the telephone. Henry advises members
to send in written requests or contact their employer’s payroll
department. The ALJ further determined that Henry followed
this procedure when she spoke with Ruisi. The Board adopted

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the ALJ’s findings and conclusions on this point. Local Joint
Exec. Bd., 363 NLRB No. 33, at 1 n.1. Taken as a whole, the
Board’s decision (including its adoption of the ALJ’s findings
and conclusions) may be fairly read to hold that the
Anniversary Date policy was justified on the basis of the
Union’s legitimate concerns over member privacy and
administrative efficiency. The Board also correctly found that
the Union policy was supported by established precedent.
The Union considers an employee’s Anniversary Date to
be “confidential,” because it is specific to that worker and
tracks with the important right to withdraw from the Union. See
JA 47; Local Joint Exec Bd., 363 NLRB No. 33, at 4.
Therefore, out of concern for the privacy of its members, the
Union requires them to request Anniversary Dates in writing.
Henry testified that she instructs employees to include
identifying information in their written requests, such as their
name and social security number, so that she is able to ensure
that only the correct employee receives this information. It can
hardly be doubted that the Union has a legitimate interest in
verifying the identity of the requestor of such information.
Furthermore, the record shows that the Union’s policy
allows it to efficiently organize and respond to Anniversary
Date requests. As the Board noted, at the time of this dispute
the Union had approximately 50,000 members, and Henry
received, on average, three to four phone calls each day
regarding membership withdrawals. Henry explained that
responding to Anniversary Date requests could be timeconsuming because that information is not always readily and
accurately available. While the Union had some electronic
scans of dues-checkoff cards, Henry had found those records
sometimes contained errors or were incomplete. Therefore, the
only way for Henry to ensure that the Union was properly
conveying accurate information to its members was by

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searching the Union’s paper filing system in order to find a
member’s original dues-checkoff card. The Union’s policy thus
enables it to respond to its members in a responsible fashion. It
certainly does not reflect an arbitrary administration of Union
affairs.
In rejecting Petitioners’ claim, the Board said: “We agree
with the [ALJ’s] finding that the Respondent’s action was not
“so far outside ‘a wide range of reasonableness’ as to be
irrational.” Local Joint Exec. Bd., 363 NLRB No. 33, at 1
n. 1 (citing Mail Handlers Local 307, 339 NLRB at 93). The
Board further noted:
Other Board precedent also supports the judge’s
conclusion. See Postal Service, 302 NLRB 701, 702
(1991) (finding union did not violate Sec. 8(b)(1)(A)
when it responded to member’s request for
anniversary dates of dues-checkoff authorizations by
informing employee that standard procedure for
obtaining those dates was to submit written
revocation form); see also Boston Gas Co., 130
NLRB 1230, 1231 (1961) (contract clause requiring
written notice of revocation of dues-checkoff
authorizations to both employer and union not so
unduly burdensome as to effectively preclude
employees from revoking dues assignment).
Id. The Board’s reasoning and the authority upon which it
relies are compelling.
Petitioners argue that the Board’s decision is shortsighted
and unreasonable because it fails to take account of the “timesensitive” nature of the information in question. Br. of Pet’rs at
10–11. This argument makes little sense, however, because
even if the Union was required to disclose information over the

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telephone, some employees would still miss the fifteen-day
cut-off date if they called too late.
Petitioners also point to some Board decisions which they
claim stand for the proposition that a union violates the duty of
fair representation if it fails to provide employees with
information upon request. But these cases are inapposite
because they involve situations in which unions entirely
refused to share information. E.g., Branch 529, Nat’l Ass’n of
Letter Carriers, 319 NLRB 879, 880–81 (1995) (union refused
to provide copies of a member’s grievance forms); Law Enf’t
& Sec. Officers, Local 40B, 260 NLRB 419, 420 (1982) (union
refused to share relevant collective bargaining agreement and
health and welfare plan documents). The Union here did not
tell Petitioners that it would not disclose their Anniversary
Dates. Rather, the Union simply required employees to submit
their requests in writing. And the Union readily disclosed
Peluso’s Anniversary Date once he submitted a written request.
The Union’s policy may be annoying to some, but it certainly
cannot be seen to violate the duty of fair representation.
Petitioners cite Hughes Aircraft Co., 164 NLRB 76 (1967),
in support of their claim that a union has an affirmative “duty
to divulge information it has easy access to.” Br. of Pet’rs at
20–21. Petitioners say that Henry violated this duty because she
could have quickly and easily accessed Petitioners’
Anniversary Dates on her computer. This claim fails. In
Hughes Aircraft, the Board found that the employer and the
union violated the Act by giving an employee incorrect
information about the time period in which he could revoke his
dues-checkoff authorization. 164 NLRB at 77–79. In this case,
the record clearly shows that the Union’s policy was designed
to protect the privacy of employees and to ensure that
employees who submitted written requests received accurate
information from the Union. Henry explained that Anniversary

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Dates were not always easily and accurately accessible by
computer. Therefore, once Henry received a written request,
she searched hard copy records to be sure that the employee
was given accurate information. That is exactly what happened
here. Upon receiving Peluso’s written revocation, Henry found
his dated paper dues-checkoff card and made sure he received
a copy. The decision in Hughes Aircraft is thus inapposite.
In light of the Union’s legitimate concerns over privacy
and efficiency, and under established Board precedent and case
law, it is clear that the Union’s policy is not “so far outside a
‘wide range of reasonableness’ as to be irrational.” O’Neill,
499 U.S. at 67 (citation omitted).
2. The Union’s policy is not discriminatory
Petitioners further contend that the Union’s policy violates
the duty of fair representation because it discriminates against
those who wish to leave the Union. The Supreme Court has
explained that the duty of fair representation bars only
“invidious” discrimination. Id. at 81. Proving such
discrimination requires “substantial evidence of discrimination
that is intentional, severe, and unrelated to legitimate union
objectives.” Amalgamated Ass’n of St., Elec. Ry. & Motor
Coach Emps. of Am. v. Lockridge, 403 U.S. 274, 301 (1971).
In assessing whether a union has violated the discrimination
prong of the duty of fair representation, courts look to the
union’s subjective motivations. See Simo v. Union of
Needletrades, Indus. & Textile Emps., 322 F.3d 602, 618 (9th
Cir. 2003) (quoting Crider, 130 F.3d at 1243).
Petitioners’ allegation is completely without merit because
there is nothing in the record to support it. The record indicates
that the Union treats all members the same with regard to
Anniversary Date requests and Petitioners cite nothing to refute

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this. The policy is related to the “legitimate union objectives”
of safeguarding members’ privacy and operating in an efficient
manner. See Lockridge, 403 U.S. at 301. And there is no
indication whatsoever that the Union bore any animosity
towards Petitioners or others who wished to revoke their duescheckoff authorizations. Because Petitioners are unable to
point to any evidence of unlawful discrimination, much less
“substantial evidence” of “intentional [and] severe”
discrimination, we reject their claim. See id.
3. There is no evidence that the Union acted in bad faith
Finally, Petitioners claim that the Union violated the duty
of fair representation by acting in bad faith. A union commits
a bad faith violation of the duty of fair representation when it
engages in “fraud, or deceitful or dishonest action.” Int’l Union
of Elec., Elec., Salaried, Mach. & Furniture Workers v. NLRB,
41 F.3d 1532, 1537 (D.C. Cir. 1994) (citation omitted). This is
a “demanding standard . . . requiring a union’s actions toward
unit employees to be sufficiently egregious or so intentionally
misleading [as] to be invidious.” Id. (quotation marks and
citation omitted).
There is not a shred of evidence in the record indicating
“egregious,” “deceitful,” or “misleading” conduct by the
Union. To the contrary, the record shows that Henry acted in
good faith in her dealings with Ruisi and Peluso. The ALJ
determined that Henry did not treat Ruisi with disrespect in
their initial phone conversation, but simply explained to her
that she and Peluso could secure their Anniversary Dates by
sending in a written request to the Union or contacting the
Company’s payroll department. And after Peluso submitted his
written revocation on February 20, 2014, Henry responded to
him in a timely and diligent manner. She called him on
February 25, and sent him a copy of his dues-checkoff card via

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certified mail on March 3. That letter was returned, so Henry
sent another on March 12. When that letter also failed to reach
Peluso, Henry sent two more in order to ensure he received a
copy of his dues-checkoff card.
The Board properly determined that the facts in this case
are readily distinguishable from those in Electrical Workers,
Local 66, 262 NLRB 483. There, a union official repeatedly
refused to allow a member to revoke his membership, and also
verbally abused him. See id. at 484. Henry did not engage in
any such behavior.
Because the record is clear that the Union did not act in
bad faith, we reject Petitioners’ claim that it violated this aspect
of the duty of fair representation.
C. There Is No Good Reason to Remand This Case to the
Board
Finally, we reject Petitioners’ assertion that the Board’s
Decision was devoid of reasoning or citations to applicable
law, and therefore should, at a minimum, be remanded for
further consideration and explanation. In holding that the
Union did not violate the duty of fair representation, the Board
adopted the ALJ’s discussion of and reliance on the Union’s
privacy and efficiency concerns, and on the ALJ’s application
of the law. In addition, the Board cited relevant precedent to
support its determination that the Union’s Anniversary Date
policy was not unlawful. Based on the Union’s legitimate
concerns and the established case law, this was a
straightforward decision that did not require more analysis.

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III.

Conclusion

For the reasons stated above, we deny the petition for
review.

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