On February 22, 2019, the NLRB General Counsel issued a memo recommending that the Board overturn Kroger and require unions to apprise employees of their savings in their initial Beck notice.[1]

In Communications Workers of America v. Beck, the Supreme Court held that when a union seeks to collect dues and fees from employees it must inform them of their right to remain non-members and that non-members have the rights to: (1) object to pay for union activities not germane to the union’s representational duties and to obtain a reduction in fees for such activities; (2) be given sufficient information to intelligently decide whether to object; and (3) be apprised of any internal union procedures for filing objections.  This notice requirement is known as “Beck Rights.”[2]

In Food & Commercial Workers Local 700 (Kroger Limited Partnership), the Board held that under the Beck requirements a union did not have to notify its members of the percentage it saves until they decide to opt out.[3]  However, in the initial notice the union is only required to let the members know they have the right to opt out and just pay for fees that are for the core financial activities of the union.  The Board held that to require this initially would be too great a burden on the union.[4]

The General Counsel argues that the Kroger decision fails “to give appropriate weight to employees’ Section 7 rights and related interests” as “it is difficult for an employee to make an informed decision about whether to become a Beck objector without first knowing the amount of savings that would result from that decision.”  The General Counsel maintains that it would not be too burdensome for unions to provide this information as they generally know the savings from previous Beck objectors.[5]  If not, the union can “make a good faith determination as to what the amount will be.”[6]

Although General Counsel memoranda are non-binding and non-precedential, they are regarded as authoritative guidance to Regional Directors.[7]

[1] https://drive.google.com/file/d/1rce8BTTd4ca8B_MNPdH4vRiBGrK4Ri6c/view?usp=sharing

[2] Communications Workers of America v. Beck, 487 U.S. 735 (1988).

[3] Food & Commercial Workers Local 700 (Kroger Limited Partnership), 361 NLRB 420 (2014).

[4] Id. at 427.

[5] See GC memo page 5.

[6] Id.

[7] https://www.lexology.com/library/detail.aspx?g=45cd46ed-852b-48e5-bfef-44fde05417a9