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Ruisi v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

May 16, 2017

Natalie Ruisi and Michael Peluso, Petitioners
v.
National Labor Relations Board, Respondent

          Argued March 14, 2017

         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.

          OPINION

          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.

         The Board, in turn, says that, "applying the accepted duty-of-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 dues-checkoff card, and also has some electronic copies scanned into its database. The Union also sends copies of employee dues 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 ...


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