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The full case caption appears at the end of this opinion. O P I N I O N PER CURIAM: SUMMARY This case presents an issue that we have not previously considered: whether it is anunfair labor practice for a union to charge nonunion members within its bargainingunit fees for individual representation in grievances, hearings, and arbitrations.Both the Employer Management Relations Board and the district court, in part,answered this question in the negative. We agree, and therefore affirm the order ofthe district court. STATEMENT OF THE FACTS The relevant facts in this case are not in dispute, as the parties have stipulatedto them. Appellants, Annice Cone, Sharon Mallory, and Karl Schlepp (collectivelyhereinafter “appellants”), are nonunion employees of the University Medical Centerof Southern Nevada (“UMC”), a local government employer pursuant to NRS 288.060.Appellants, as employees of UMC, are governed by a collective bargaining agreement(the “CBA”) and are members of a bargaining unit that is represented by NevadaService Employees Union/SEIU Local 1107 (the “union”). In October 1994, approximately 100 union members, including the appellants in thiscase, exercised their rights under article 8, section 4 of the CBA to revoke theirunion dues authorization forms, thereby becoming nonunion members of the bargainingunit. During this same time period, in October 1994, the union disseminated a newExecutive Board Policy (the “policy”), which is at issue in this case. The policyserved two purposes: (1) to establish a fee schedule for all nonmembers of the unionfor representation in grievance matters; and (2) to notify nonunion members thatthey could select outside counsel to represent them in bargaining unit matters. Thepolicy’s fee schedule provided that grievance consultation would cost a minimum ofsixty dollars an hour, that the nonunion member was responsible for fifty percent ofthe billed fee for hearing officers and arbitrators, and one hundred percent ofunion attorney fees of up to two hundred dollars per hour. The policy was authorized by article 6, section 2 of the CBA, which provides that: The Union recognizes its responsibility as bargaining agent and agrees fairly to represent all employees in the bargaining unit. UMC recognizes the right of the Union to charge nonmembers of the Union a reasonable service fee for representation in appeals, grievances and hearings. It is undisputed that the policy was never actually enforced against any UMCnonunion employee, including appellants. However, because appellants believed thatarticle 6, section 2 of the CBA and the policy violated the Local GovernmentEmployee-Management Relations Act (the “act”), appellants filed a complaint with theLocal Government Employee-Management Relations Board (the “board”). In theircomplaint, filed on March 7, 1995, appellants alleged that the policy violated theact because it “interfered with, restrained, coerced and discriminated against the[appellants] (and all other employee[s] in the bargaining unit) in the exercise oftheir right, if they choose, to be nonmembers of the UNION, all in violation of NRS288.140, 288.270(1)(a), 288.270(1)(c), 288.270(2)(a).” In response to appellants’ initial complaint, UMC, the board, and the union filedanswers. Thereafter, the parties filed legal briefs, stipulated to the facts, andagreed to let the board decide the issues in this case without a hearing. On January 10, 1996, the board issued a divided 2-1 decision. A majority of theboard upheld the policy, concluding that it was not contrary to the provisions ofNRS 288 or Nevada’s Right to Work Law (NRS 613.230-300) and that, in thealternative, appellants had waived by inaction their right to object to suchprovisions. Further, the board concluded that the policy was neither coercive nordiscriminatory in nature and did not derogate the union’s statutory duty as anexclusive bargaining agent to represent all UMC employees fairly and impartially. In contrast, the dissenter to the board’s decision concluded that the policy wasinvalid as a prohibited practice under NRS 288.270(2)(a) because it served to coercenonunion employees into joining the union. Further, the dissent concluded that thepolicy was a prohibited practice because the union, as the exclusive bargainingagent for UMC employees, had a duty to represent all union and nonunion employees ona nondiscriminatory basis. Because appellants felt that the board erred in reaching this conclusion, appellantsfiled a petition for judicial review (the “petition”). The district court denied inpart and granted in part [FOOTNOTE 1] the petition, ruling that it was not arbitrary orcapricious for the board to conclude that the policy was not discriminatory againstnonunion employees or otherwise unlawful as interpreted. Believing that the district court erred in making the aforementioned ruling,appellants filed this timely appeal. DISCUSSION This court has held that it will conduct an independent review of an administrativeagency’s construction of a statute where the facts are not in dispute. See AmericanInt’l Vacations v. MacBride, 99 Nev. 324, 326, 661 P.2d 1301, 1302 (1983). Becausethe facts are not in dispute in this matter, and indeed have been stipulated to,this court’s review is de novo. The board, and later the district court, concluded that NRS 288.027 did not prohibitthe union from charging a nonmember costs for the union’s grievance representationservices. Appellants first contend that this conclusion is erroneous because theunion, as the “bargaining agent” of UMC employees, is obligated by the plainlanguage of NRS 288.027 to “exclusively” represent all UMC employees, includingnonunion members, in all grievance matters without charging a fee. [FOOTNOTE 2] We disagree. A. NRS 288.027 NRS 288.027 defines a bargaining agent as an “exclusive” representative: an employee organization recognized by the local government employer as the exclusive representative of all local government employees in the bargaining unit for purposes of collective bargaining. Because of the inclusion of the word “exclusive,” appellants conclude that the unionis not allowed to “pick and choose” which of the representational activities that itwill provide free of charge because its statutory designation as the “exclusiverepresentative” requires it to provide all services for free. We do not agree thatthe mere inclusion of the word “exclusive” in and of itself prohibits a union fromcharging nonunion members service fees for individual grievance representation. [FOOTNOTE 3] SeeNational Treasury Employees Union v. Federal Labor Relations Auth., 800 F.2d 1165,1167 (D.C. Cir. 1986) (noting that there was “nothing particularly plain orcompelling about the text [of a similar federal statute], standing alone”). Further, with regard to statutory language, there is another Nevada statute, NRS288.140(2), that explicitly authorizes a nonunion member to act on his own behalf”with respect to any condition of his employment.” This statute provides anindividual with a right to forego union representation. Implicit in the plainlanguage of this provision is the requisite that a nonunion member pay for pursuinghis or her own grievance, even if such payment is made to the union. Accordingly, we conclude that there is nothing in the plain language of NRS 288.027that would prohibit the union from charging nonmembers fees for individualrepresentation. B. Right to work laws Appellants next contend that the policy violates Nevada’s right to work laws.Nevada’s right to work laws, particularly NRS 613.250, were enacted for the expresspurpose of guaranteeing every individual the right to work for a given employerregardless of whether the worker belongs to a union. See Independent Guard Ass’n v.Wackenhut Servs., 90 Nev. 198, 202-03, 522 P.2d 1010, 1013 (1974). In Wackenhut,this court invalidated an agency shop agreement, an agreement to pay fees to a labororganization in lieu of membership dues, because it violated NRS 613.250 since itwas equivalent to conditioning employment on union membership. 90 Nev. at 203, 522P.2d at 1014. The instant policy is unlike the agency shop agreement in Wackenhut, because payinga service fee for grievance representation is not a condition of employment. Indeed,an individual may opt to hire his or her own counsel, and thereby forego giving theunion any money at all without fear of losing his or her job. Accordingly, we conclude that the policy does not violate Nevada’s right to worklaws. C. NRS 288.140(1) and NRS 288.270(2) Appellants’ final argument is that the union discriminated against its nonunionmembers, and thereby breached its duty of fair representation set forth in NRS288.140(1) and NRS 288.270(2) by charging nonunion members a service fee forindividual grievance representation. [FOOTNOTE 4] We disagree. NRS 288.140(1) [FOOTNOTE 5] sets forth the union’s duty of fair representation and explicitlystates that a local government employer shall not discriminate based on membershipor nonmembership in an employee organization. Further, NRS 288.270(2) describes theprohibited practices of an employee organization, including that it may not: (a) Interfere with, restrain or coerce any employee in the exercise of any right guaranteed under this chapter. . . . . (c) Discriminate because of . . . political or personal reasons or affiliations. We see no discrimination or coercion, however, in requiring nonunion members to payreasonable costs associated with individual grievance representation, and thereforeconclude that the union did not violate the aforementioned statutes. There is persuasive authority and a compelling rationale in support of ourconclusion. First, several other jurisdictions have held that requiring nonunionmembers to pay costs for union representation was not discriminatory, coercive orrestraining. See Schaffer v. Board of Education, 869 S.W.2d 163, 166-68 (Mo. Ct.App. 1993); Opinion of the Justices, 401 A.2d 135, 147 (Me. 1979). Second, like the Supreme Judicial Court of Maine, we are convinced that theexclusive bargaining relationship establishes a “mutuality of obligation”: a unionhas the obligation to represent all employees in the bargaining unit without regardto union membership, and the employee has a corresponding obligation, if permissibleunder the CBA and required by the union policy, to share in defraying the costs ofcollective bargaining services from which he or she directly benefits. See Opinionof the Justices, 401 A.2d at 147. Our recognition of this mutuality of obligationwill, in part, serve to discourage “free riders” — employees who receive thebenefits of union representation but are unwilling to contribute to its financialsupport. See Schaffer, 869 S.W.2d at 166 (citing NLRB v. General Motors Corp., 373U.S. 734, 743 (1963)). Although appellants cite much precedent, [FOOTNOTE 6] including NLRB opinions, in support oftheir position, we reject this authority. Preliminarily, we note that this court isnot bound by an NLRB decision when it determines that the statutes involved do notfall within the purview of the National Labor Relations Act. See Associated Gen.Contractors v. Otter Tail Power Co., 457 F. Supp. 1207, 1216 (D. N.D. 1978)(activities not listed in sections seven and eight of the National Labor RelationsAct are within the jurisdiction of the state courts). Further, we disagree with thisauthority because it leads to an inequitable result that we cannot condone, byessentially requiring union members to shoulder the burden of costs associated withnonunion members’ individual grievance representation. Accordingly, we conclude that the union did not discriminate against nonmembers inenacting the policy, and that the policy merely recognized the mutuality ofobligation that may arise under an exclusive bargaining arrangement. CONCLUSION Accordingly, we hold that the policy is not violative of NRS 288.027, Nevada’s rightto work laws, NRS 288.140(1), or NRS 288.270(2). We therefore affirm the order ofthe district court. :::FOOTNOTES::: FN1 Although the district court upheld the policy as interpreted, it remanded thismatter to the board with instructions that the board require the union to rewritethe policy to clarify that the policy only applied to individual grievances, notgeneralized grievances that affect all employees. FN2 Appellants also contend that the board erred in concluding that the statute oflimitations barred appellants’ claim because the CBA provision authorizing the unionto enact the policy had been in effect for six years. We agree. Appellants did notwaive their right to contest the validity of the policy because they filed theirclaim within six months of the policy’s enactment. See NRS 288.110(4) (setting forthsix-month statute of limitations); Fraternal Order of Police Haas Mem’l Lodge #7 v.Pennsylvania Labor Relations Bd., 696 A.2d 873, 876 (Pa. Commw. Ct. 1997) (holdingthat the limitations period for the filing of an unfair labor practices charge istriggered when the complainant has reason to believe that an unfair labor practicehas actually occurred); Las Vegas Police Protective Ass’n Metro, Inc. v. City of LasVegas, EMRB Item No. 264, Case no. A1-04445474, at 5 (July 15, 1991) (courtsconstrue the waiver doctrine strictly). Because we agree with appellants that they did not waive their right to object tothe policy, we reach the substantive merits of their appeal. FN3 We recognize that there is authority supporting appellants’ position. SeeInternational Assoc. of Machinists and Aerospace Workers, Local Union 697, 223N.L.R.B. 832, 834 (1976) (describing the role of a union designated by statute as an”exclusive” bargaining agent). However, we disagree with the National LaborRelations Board’s (“NLRB”) conclusion that an exclusive bargaining agent cannotcharge nonmembers fees for individual grievance representation. FN4 Appellants assert several other arguments, including but not limited to theircontention that the decision to assess a fee for grievance representation should bemade by the legislature and that the policy unfairly concentrates the cost ofgrievance adjustment on nonmembers. We have considered appellants’ arguments andconclude that they lack merit. FN5 NRS 288.140(1) provides that: It is the right of every local government employee, subject to the limitation provided in subsection 3, to join any employee organization of his choice or to refrain from joining any employee organization. A local government employer shall not discriminate in any way among its employees on account of membership or nonmembership in an employee organization. FN6 Appellants’ citation of authority includes: National Treasury Employees Union v.Federal Labor Relations Auth., 721 F.2d 1402 (D.C. Cir. 1983); Del Casal v. EasternAirlines, Inc., 634 F.2d 295 (5th Cir. 1981); Furniture Workers Div., Local 282, 291N.L.R.B. 182 (1988); Columbus Area Local, American Postal Workers Union, 277N.L.R.B. 541 (1985); International Association of Machinists and Aerospace Workers,Local Union No. 697, 223 N.L.R.B. 832 (1976).
Cone v. Nevada Serv. Employees Union In the Supreme Court of the State of Nevada Annice Cone, Sharon Mallory, and Karl Schlepp, Appellants, v. Nevada Service Employees Union/SEIU Local 1107, The University Medical Center ofSouthern Nevada, and the State of Nevada, Local Government Employee-ManagementRelations Board, Respondents. No. 29718 Appeal from the Eighth Judicial District Court, Clark County; Nancy A. Becker, Judge. Filed: May 4, 2000 Before: ROSE, C.J., MAUPIN and SHEARING, JJ. Counsel: Frank J. Cremen, Las Vegas, for Appellants. Frankie Sue Del Papa, Attorney General, Jan Cohen, Senior Deputy Attorney General,and Matthew T. Dushoff, Deputy Attorney General, Carson City; Stewart L. Bell,District Attorney, and Mitchell M. Cohen, Deputy District Attorney, Clark County;Dennis A. Kist & Associates, Las Vegas; Van Bourg, Weinberg, Roger & Rosenfeld andJames G. Varga, Los Angeles, California; and National Right to Work Legal DefenseFoundation and Glenn M. Taubman, Springfield, Illinois, for Respondents.
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