Imagine this: the only way you can vote is if you show up in person and bring your ID with you. Otherwise voicing your will cannot and will not be accepted. In defense of such a rule, proponents say that the requirements are “merely procedural steps necessary to prevent fraud.” Those who oppose it say the requirements significantly burden the exercise of the protected rights of those who live some distance from the voting place or who lack a picture ID.
This is the sort of restriction that has caused major political upheaval when applied to the country’s electoral process. Labor unions are among the first in line to challenge voter ID laws. See, for example, the AFL-CIO’s “25 Reasons Why Voter Identification Laws Are Unconstitutional.” https://aflcio.org/2014/5/9/25-reasons-why-voter-identification-laws-are-unconstitutional-courtesy-wisconsin. That is, of course, unless it’s the union that is promoting the restriction. And, that brings us to the D.C. Circuit’s recent decision in Local 58, IBEW v. NLRB, 2018 U.S. App. LEXIS 11972 (D.C. Cir. May 8, 2018).
Local 58 of the International Brotherhood of Electrical Workers had a rule: workers who wanted to resign their membership or opt out of paying dues must appear in person at the union hall with a picture ID and a written request to resign. The Local’s business manager testified that the union adopted the rule to protect workers from “fraudulent resignations” that would interrupt their pension and death benefits. The union offered no evidence of such behavior by anyone.
A NLRB administrative law judge upheld the rule after a worker complained about the restriction, arguing that it was a two hour drive to the union hall. On review, the NLRB panel of three (with Member Pearce dissenting) reversed, holding that it was inconvenient for workers to travel to the hall and that the rule might discourage workers “who wished to avoid a face-to-face encounter with a union representative.”
The union appealed the NLRB’s decision. A unanimous panel of judges Rogers, Kavanaugh and Chief Judge Merrick Garland (yes, that Merrick Garland), affirmed the NLRB’s decision. The court affirmed the Labor Board’s long standing “distinction between union policies that restrict or penalize a member’s rights to resign or revoke, and those that impose procedural requirements or ministerial acts necessary to verify a member’s resignation or revocation.”
In this case, however, Local 58’s policy impermissibly restricted members’ rights to revoke their dues-deduction authorizations. The court approved of the NLRB’s reliance on Newport News Shipbuilding and Dry Dock Co., 253 NLRB 721, 731-32 (1980), enf’d sub nom. Peninsula Shipbuilders’ Ass’n v. NLRB, 663 F.2d 488 (4th Cir. 1981). There, the Board concluded that “a requirement that employees appear in person at a union hall in order to revoke checkoff would impose, inherently, an unconscionable impediment to the free choice conferred by [LMRA] Section 302(c)(4).”
With respect to Local 58’s policy, the court accepted the Board’s decision that the undue hardship provision was “insufficient to mitigate the burden imposed by the policy.” It noted that the Board did not foreclose the possibility that Local 58 could identify acceptable alternatives in the event of undue hardship, but it had not done so. In fact, the Board did not block Local 58 “from requiring other means of verifying identification to vindicate its anti-fraud interests,” nor did it block the union from “issuing a substantially similar policy that included a description of acceptable alternative arrangements in the event of undue hardship.”