Tamosiunas v. Nat'l Labor Relations Bd. , 892 F.3d 422 ( 2018 )


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  •  United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued January 8, 2018                 Decided June 15, 2018
    No. 16-1338
    MARK TAMOSIUNAS, ET AL.,
    PETITIONERS
    v.
    NATIONAL LABOR RELATIONS BOARD,
    RESPONDENT
    UNITE HERE!, LOCAL 5,
    INTERVENOR
    On Petition for Review of an Order
    of the National Labor Relations Board
    Glenn M. Taubman argued the cause for petitioners.
    With him on the briefs were Sarah E. Hartsfield and Aaron B.
    Solem.
    Valerie L. Collins, Attorney, National Labor Relations
    Board, argued the cause for respondent. With her on the brief
    were Richard F. Griffin, Jr., General Counsel at the time the
    brief was filed, John H. Ferguson, Associate General Counsel,
    Linda Dreeben, Deputy Associate General Counsel, and Julie
    B. Broido, Supervisory Attorney.
    2
    Eric B. Myers argued the cause and filed the brief for
    intervenor Unite Here!, Local 5.
    Before: MILLETT and WILKINS, Circuit Judges, and
    EDWARDS, Senior Circuit Judge.
    Opinion for the Court filed by Circuit Judge MILLETT.
    MILLETT, Circuit Judge: Several Hyatt Regency Hotel
    employees in Hawaii objected to and formally declined full
    membership in their union. Nonetheless, they received a
    letter from the union requiring immediate payment of full
    union dues—that is, dues owed by employees who chose to
    join the union in full. The letter went on to inform the
    employees that the Hyatt Regency Hotel would soon be
    deducting the amounts necessary to pay full union dues from
    future paychecks at the union’s behest. The Board concluded
    that, in its view, the letter was an obvious mistake and no
    reasonable employee reading it would have felt pressured to
    pay the demanded full union membership dues. The union,
    for its part, neither acknowledged that the letter was a mistake,
    nor apologized for sending the dues demand to employees who
    it knew had formally objected to joining the union.
    The Board’s decision is legally unsupportable on this
    record. The letter demanded payment from individuals the
    union knew had rejected full membership, and it
    simultaneously initiated the garnishment process to collect the
    full dues. That letter reasonably tended to coerce or restrain
    the objecting Hyatt employees in the exercise of their statutory
    right to limit their association with the union. Accordingly,
    we grant the employees’ petition, vacate the Board’s decision,
    and remand for further proceedings consistent with this
    opinion.
    3
    I
    A
    The National Labor Relations Act (“the Act”) protects an
    employee’s right to “bargain collectively through
    representatives of [his or her] own choosing”—a guarantee that
    is commonly referred to as a worker’s “Section 7” rights. 29
    U.S.C. § 157 (codifying Section 7 of the Act). Importantly,
    Section 7 equally protects the inverse right: the right to
    abstain from unionization. 
    Id. To enforce
    that right, the Act
    prohibits both employers and labor unions from engaging in
    “unfair labor practices,” including any behavior designed to
    “interfere with, restrain, or coerce employees in the exercise of
    the rights guaranteed in” Section 7. 
    Id. § 158(a),
    (b)(1)(A)
    (codifying Section 8 of the Act). In other words, restraining
    an employee from exercising her right to abstain from union
    membership constitutes an unfair labor practice. So does
    coercing an employee not to exercise that right.
    There are a few exceptions: the prohibition on unfair
    labor practices does not preclude an employer from agreeing to
    require union participation “as a condition of employment,”
    assuming the relevant union meets certain statutory
    prerequisites. 29 U.S.C. § 158(a)(3). And it does not impair
    a union’s ability to prescribe its internal membership standards.
    
    Id. § 158(b)(1).
    When an employer requires union membership as a
    mandatory condition of employment, the law allows
    employees to choose between becoming full members or
    “core” financial members. Unlike full members, “core”
    members pay a reduced annual fee (“core fee”) to cover their
    fair share of the union’s representative work that aims to
    benefit all employees. NLRB v. General Motors Corp., 373
    
    4 U.S. 734
    , 742 (1963) (“‘Membership’ as a condition of
    employment is whittled down to its financial core.”).
    The obligation to pay core fees applies to all employees,
    even those opposed to union representation. That is because,
    once a union becomes the collective bargaining agent for
    employees in a work unit, the union is required by law to
    represent the interests of all employees equally, even those that
    do not support the union. Emporium Capwell Co. v. Western
    Addition Cmty. Org., 
    420 U.S. 50
    , 64 (1975). That task
    “entails the expenditure of considerable funds” and resources.
    International Ass’n of Machinists v. Street, 
    367 U.S. 740
    , 760
    (1961).     Also, the benefits obtained by the union in
    negotiating with the employer—such as pay, work
    opportunities, vacation and sick leave—redound to the benefit
    of core members just as much as full union members. For
    those reasons, requiring core members to pay their fair share of
    union expenses incurred on behalf of the entire workforce best
    accommodates the associational rights of all employees while
    preventing freeloading by employees and providing unions
    with the resources necessary to perform effectively their
    representative duties to all employees. See International
    Ass’n of 
    Machinists, 367 U.S. at 750
    , 760–764 (“Activities of
    labor organizations resulting in the procurement of employee
    benefits are costly * * *. We believe that it is essentially
    unfair for nonmembers to participate in the benefits of those
    activities without contributing anything to the cost.”).
    In short, though full union members pay a higher rate and,
    in exchange, receive the right to participate in internal union
    affairs and benefit programs, “core” members still qualify as
    union “members” for purposes of retaining their contractual
    right to “continued employment” by paying their fair share of
    union activity undertaken on behalf of all employees.
    5
    B
    Mark Tamosiunas, Steven Taona, Agnes Demarke, and
    Wayne Young (collectively, the Objecting Employees) provide
    hospitality services for the Hyatt Regency Hotel in Waikiki,
    Hawaii. Since at least 2006, “Unite Here!,” Local 5, a labor
    union, has represented hotel hospitality workers in Hawaii,
    including those at the Hyatt Regency Hotel.
    Between July 1, 2006 and June 30, 2010, a collective
    bargaining agreement governed relations between Local 5 and
    the Hyatt Regency Hotel. Among many other things, this
    agreement included a “union security clause,” which required
    all Hyatt employees to become or remain either full or core
    members of Local 5 “as a condition of continued employment.”
    J.A. 11.
    From the start, the Objecting Employees have participated
    in Local 5 solely as “core” members. They have consistently
    objected to the payment of any additional fees for
    “nonrepresentational activities.” J.A. 11.
    When the Hyatt collective bargaining agreement
    terminated at the end of the day on June 30, 2010, so did the
    union security clause obligating Hyatt employees to maintain
    at least core membership in Local 5. That left Hyatt’s
    employees—both the core and full union members—free to
    continue or abandon union membership as they pleased. The
    Objecting Employees waited two years and then broke rank.
    Each informed Local 5 in writing that they would no longer
    allow the Hyatt to remit their core fees to the union. They
    added, however, that should Local 5 “secure a compulsory dues
    contract” in the future, they would recommence payment of the
    “required amount of dues,” which the letters defined as the
    “reduced fair share amount for financial core members.” J.A.
    6
    71–74.
    In August 2013, the union secured just such an agreement.
    That contract, like the one before it, contained a union security
    clause. It read as follows:
    Section 7.    UNION SECURITY
    7.01 Employees who are now members of the
    Union shall, as a condition of continued
    employment, remain members of the Union.
    All other employees and all new employees
    shall, as a condition of continued employment,
    become members of the Union no later than the
    thirty-first (31st) day following the execution of
    this Agreement or their date of employment,
    whichever is later.
    7.02 Five (5) days after receipt of written
    notice from the Union that an employee has
    failed to tender his uniform dues and initiation
    fees * * *, Hyatt shall suspend such employees
    for seven (7) days pending termination. If
    within the seven (7) day period of suspension
    the Union notifies Hyatt that the employee has
    complied with Section 7.1, the employee shall
    be immediately reinstated to work without back
    pay. If Hyatt is not so notified by the Union
    the employee shall be discharged and shall not
    have access to the grievance procedure as
    provided in Section 18 of this Agreement.
    J.A. 11.
    Soon after securing this agreement, Local 5 sent letters to
    7
    each of the Objecting Employees entreating them to rejoin the
    union as full members (the October 2013 letters). The letters
    indicated that Local 5 was aware that the employees had
    requested to pay only core fees in the past, but encouraged
    them to reconsider the “benefits of full union membership” in
    light of the favorable collective bargaining agreement that had
    been obtained and to “make arrangements to pay the
    arrearages” accrued to date.        J.A. 75–78.    The letters
    concluded with a note identifying the specific amount of dues
    outstanding that would need to be paid to reinstate full
    membership privileges for the individual employee.
    Since the Objecting Employees’ views of the Union had
    not warmed, they chose to remain only as core members.
    Nevertheless, on March 31, 2014, they each received a billing
    letter from Local 5, demanding payment of full membership
    dues (“Dues Letter”). Aside from the names and amounts
    due, the Dues Letters were identical:
    THIS IS A STATEMENT OF YOUR
    ACCOUNT AS OF THE ABOVE DATE.
    Your dues must be made current. To facilitate
    this we have billed your employer for the
    balance listed below. A deduction will be
    reflected on an upcoming pay stub. If your
    employer doesn’t deduct arrearages, you are
    responsible for paying this balance directly to
    Local 5.
    Please be advised that the International
    Constitution Rules affirmed by Local Union 5
    Bylaws must suspend any Member whose Dues
    are more than TWO Months in arrears.
    ATTENTION FOOD SERVERS:              Please note
    8
    that if there are insufficient funds available in
    your weekly paycheck to cover dues
    deductions, then you are responsible for
    sending your union dues directly to Local 5.
    PLEASE REMIT THE BALANCE STATED.
    Your prompt payment is appreciated.
    J.A. 79.
    The Dues Letter also contained an individualized chart
    itemizing the amount of dues owed, along with a final line item
    denoted “Total Balance due.” J.A. 79–86.
    The same day it sent those letters, Local 5 also contacted
    Hyatt. In an email, Local 5 informed Hyatt that it had sent
    out the Dues Letters and advised Hyatt that it would be
    “submitting a billing report for March” identifying the amount
    of union fees individual employees owed. J.A. 87–89.
    Local 5 requested that Hyatt process this billing—that is,
    garnish the unpaid fees from employees’ paychecks—in the
    upcoming pay period. J.A. 89.
    Consistent with that request, on April 11, 2014, Hyatt
    deducted up to the maximum amount of $62.50 from the
    paychecks of the Objecting Employees and other core
    members. Hyatt soon learned of the error, and it promptly
    sent a letter to the Objecting Employees and other affected
    workers, acknowledging the mistaken garnishment and
    assuring that it would credit their upcoming paychecks for the
    amount improperly remitted to the Union.
    Local 5, for its part, remained silent.
    Unsatisfied, the Objecting Employees filed a complaint
    with the National Labor Relations Board on April 28, 2014,
    9
    charging Local 5 with a variety of unfair labor practices
    prohibited by the National Labor Relations Act. More
    specifically, the Objecting Employees alleged that the Union’s
    demand for retroactive full union dues and promised
    garnishment of their wages represented an effort both to
    restrain them from exercising their Section 7 right not to join
    the union in full and to coerce them not to exercise that right.
    J.A. 59–60. The charge also claimed that Local 5 had
    endeavored to apply the August 2013 union security provision
    retroactively to collect dues for a period not governed by the
    collective bargaining agreement.
    With charges pending, Local 5 took some action of its
    own. On May 13, 2014, the Union sent a letter only to the
    Objecting Employees who had filed the charges (but for some
    unexplained reason, not to all of the other core employees who
    had also wrongly received the Dues Letter). The Union’s
    May 2014 letters “clarif[ied] the March 31, 2014 [Dues] letter,”
    stating that the billing amounts contained in the letters just
    identified “the amount of dues [needed] to become a member
    in good standing with the Union,” not the smaller amount of
    core fees needed to retain one’s employment. J.A. 136.
    Local 5’s May 2014 letter stressed that the Dues Letter did “not
    refer to the union security clause” or otherwise “threaten [any
    employee’s] continued employment.” 
    Id. Rather, the
    Letter
    raised only the specter of a suspension in “Union membership.”
    
    Id. (emphasis in
    original).
    An administrative law judge concluded that the Dues
    Letter did not expressly or impliedly threaten the employees
    beyond threatening to suspend union membership, a matter of
    internal self-governance. On that basis, the administrative
    law judge found no unlawful coercion of the Objecting
    Employees’ Section 7 rights. The administrative law judge
    did not address whether the letters also “restrained” the
    10
    employees in their exercise of Section 7 rights, framing the
    issue in terms of threats and coercion alone. J.A. 149.
    The Board, in a divided opinion, agreed with the
    administrative law judge. The Board acknowledged that the
    administrative law judge had phrased his inquiry as whether
    the letter amounted to a “threat or coercion,” J.A. 140 n.1
    (emphasis added), while the statutory language referred to
    “conduct that restrain[s] or coerce[s]” employees, 29
    U.S.C. § 158(b)(1)(A) (emphasis added). But the Board
    ruled that this “use of different terminology did not affect [the]
    analysis.” J.A. 140 n.1.
    The Board also ruled that “the only objectively reasonable
    view of the letter, in context, was that it was mistakenly
    directed” to the Objecting Employees. J.A. 141. In support
    of that conclusion, the Board reasoned that the letter (i) sought
    full membership dues (not just core fee arrearages); (ii) relied
    on internal board rules and regulations (not a union security
    clause or other contractual requirement); (iii) suggested a
    suspension in union membership (and not employment) would
    occur if dues went unpaid; and (iv) did not incorporate or imply
    any other adverse consequences in the event of non-payment.
    The Board added that Local 5 had indicated in its initial
    October 2013 letter that the union dues obligation fell only
    upon “full” union members. 
    Id. 140–141. Member
    McFerran dissented. In her view, the Union’s
    demand of “dues from employees who did not owe them” by
    itself constituted an unfair labor practice. J.A. 141. “To be
    told that you are delinquent in paying a bill,” she concluded,
    “and that steps to collect will be taken, obviously has a
    reasonable tendency to coerce payment from you—which was
    precisely the point of the [Union’s] letter, on its face.” 
    Id. 142. Member
    McFerran also pointed out that the garnishment
    11
    of dues from an upcoming paycheck was itself an adverse
    consequence with which the Board and judge had failed to
    grapple. Finally, she concluded that the October 2013 letter,
    even if relevant, did “not preclude an alternative, reasonable,
    and coercive construction—all that [the Board] requires to find
    a violation.” 
    Id. 143. II
    A
    The Board has primary responsibility for applying “the
    general provisions of the [National Labor Relations] Act to the
    complexities of industrial life.” Pattern Makers’ League of
    North America, AFL-CIO v. NLRB, 
    473 U.S. 95
    , 114 (1985)
    (internal quotation marks and citations omitted). When the
    Board’s construction of the Act is reasonable, it cannot be
    rejected “merely because the courts might prefer another view
    of the statute.” Ford Motor Co. v. NLRB, 
    441 U.S. 488
    , 497
    (1979). But when the Board’s findings are not supported by
    substantial evidence, the Board has acted arbitrarily, or the
    Board has otherwise erred in applying established law, the
    court must intervene. Weigand v. NLRB, 
    783 F.3d 889
    , 894–
    895 (D.C. Cir. 2015).
    This case demands our intervention.          The Board’s
    decision falls far short of the substantial evidence needed to
    satisfy its own governing legal standard: that no reasonable
    employee could interpret the March 2013 Dues Letter as an
    effort to restrain her from exercising her right not to pay the
    dues for full union membership or to coerce her into paying
    such dues. See Service Employees Int’l Union, Nurses
    Alliance, Local 121RN (Pomona Valley Hosp.), 
    355 N.L.R.B. 234
    , 235 (2010).
    12
    Heavy-handed threats and sanctions will, of course, rise to
    the level of coercing or restraining the exercise of Section 7
    rights and so will readily qualify as unfair labor practices
    prohibited by Section 8 of the National Labor Relations Act,
    29 U.S.C. § 158. See NLRB. v. Allis-Chalmers Mfg. Co., 
    388 U.S. 175
    , 186 (1967) (describing the legislative purpose behind
    Section 8(b) as addressing “threats of reprisal against
    employees and their families”); see also International Union of
    Dist. 50, UMW (Ruberoid Co.), 
    173 N.L.R.B. 87
    , 87 (1968)
    (“[T]he Respondents violated Section 8(b)(1)(A) of the Act by
    threatening employees with discharge or with loss of
    retroactive contract benefits if they refused to sign an
    authorization for checkoff of dues[.]”).
    But Section 8’s protective cloak sweeps far more broadly,
    proscribing any action by an employer or union that “has a
    reasonable tendency” to coerce or restrain employees in the
    exercise of their Section 7 rights. See Enterprise Leasing Co.
    of Florida v. NLRB, 
    831 F.3d 534
    , 543 (D.C. Cir. 2016)
    (interpreting Section 158(a)(1), the analogous employer
    provision); see also Helton v. NLRB, 
    656 F.2d 883
    , 889 (D.C.
    Cir. 1981) (concluding that any textual differences between the
    provisions governing employer and union conduct were “not
    intended to indicate that union conduct should be measured
    against a less demanding standard than employer conduct”);
    see also NLRB v. Service Employees Int’l Union, Local 254,
    AFL-CIO, 
    535 F.2d 1335
    , 1337–1338 (1st Cir. 1976) (applying
    the “reasonably tend to coerce” test to an allegation of union
    misconduct).
    Accordingly, implied threats may run afoul of Sections 7
    and 8. See 
    Helton, 656 F.2d at 887
    (holding that Section
    8(b)(1)(A) “is not limited to union conduct involving threats of
    violence or economic coercion”); International Bhd. of Elec.
    Workers, AFL-CIO v. NLRB, 
    487 F.2d 1113
    , 1119 (D.C. Cir.
    13
    1972) (holding that the National Labor Relations Act
    “prohibits indirect union restraint or coercion of an employer”
    in addition to direct coercion or restraint); Pomona Valley
    
    Hosp., 355 N.L.R.B. at 235
    (same). For example, threats to
    “refer claims * * * to a collection agency” or to “institute court
    action” to recover unpaid union dues from objecting employees
    constitute unlawful coercion. International Bhd. of Elec.
    Workers, Local No. 396 (Central Tel. Co.), 
    229 N.L.R.B. 469
    ,
    469–470 (1977) (“[W]e view [the union’s] efforts to collect
    dues from nonmembers * * * as coercive and in violation of
    Section 8(b)(1)(A).”).
    The Board goes further still. Under its precedent,
    whether a communication will be restraining or coercive turns
    on “whether the words could reasonably be construed as
    coercive,” even if that is not the “only reasonable
    construction.” Pomona Valley 
    Hosp., 355 N.L.R.B. at 235
    (emphasis added). Under that standard, if any reasonable
    employee could view the communication as coercive or
    restraining, the union (or employer) has violated the law. 1
    Given how jealously the Board’s decisions protect
    employees’ Section 7 rights, the Board’s decision in this case
    makes no sense. Directly requiring the Objecting Employees
    to pay full-membership dues would collide head-on with their
    Section 7 rights. That much is not disputed. Yet the text of
    the Dues Letter reads very much like a payment demand.
    Each Objecting Employee’s letter included an individualized
    1
    Because the parties do not contest this standard, we take no
    position on whether the Board’s “any reasonable employee”
    framework provides the proper lens through which to view a Section
    8 violation. In any case, if the Board deviated from its own
    standard without explanation, it has acted arbitrarily. FCC v. Fox
    Television Stations, Inc., 
    556 U.S. 502
    , 515 (2009).
    14
    accounting of the amount purportedly outstanding, and then
    said that the employee “must” come current with those dues.
    J.A. 79–86. Each letter also said that the employee was
    personally “responsible” for the overdue amounts. 
    Id. And each
    advised that the employee “please remit the balance
    stated” “prompt[ly].” 
    Id. If the
    employee retained any lingering hope of choice in
    the matter, the letter disabused her of it by advising that failure
    to pay would result in the garnishment of her wages. That
    was no idle threat either. The Dues Letter was explicit that
    Local 5 had already set the forced-collection wheels in motion
    by “bill[ing] [the] employer for the balance listed” so that a
    “deduction will be reflected on an upcoming pay stub.” J.A.
    79 (emphasis added). And that is exactly what happened.
    At the Union’s urging, Hyatt extracted dues payments from
    each Objecting Employee’s next paycheck.
    The Union, in short, tried to fulfill through the back door
    of employer garnishment the same direct demand for employee
    payment that Section 8 forbids on the front end. The only
    choice about paying full union dues that was left to the
    employee was, in effect: “We can do this the easy way, or we
    can do this the hard way.” Either way, the employee’s
    Section 7 choice to pay only core fees evaporated. That is the
    very definition of coercion and restraint. Or at least a
    reasonable employee could think so.
    The Board concluded that no sensible employee would
    have read the Dues Letter as compelling or coercing a payment
    of full union dues. The Board found it relevant that the Letter
    (1) only sought arrearages for unpaid full union dues, not core
    representational fees; (2) relied solely on internal membership
    rules as authority for collection; (3) referenced suspension in
    union membership; (4) threatened no other adverse
    15
    consequence of non-payment; and (5) the October 2013 letter
    makes clear that union knew the protesting employees were
    core members with no obligation to pay full union dues.
    The Board is, of course, right that the factors it identified
    provided good reason to believe that Local 5 aimed to extract
    “full” membership dues, but hardly anything tipped off core
    employees that the Union did so by mistake and that the
    demanded payment and promised garnishment were not to be
    taken seriously. That is where the Board’s rationale comes up
    woefully short. Indeed, the Dues Letter’s terms make it just
    as (if not more) likely that Local 5 hoped to obtain—by
    garnishment or a pressured voluntary payment—the very dues
    it sought: full membership dues.
    In addition, the fact that, just five months earlier in
    October 2013, Local 5 had solicited these same employees to
    switch from core to full membership undermines rather than
    supports the Board’s decision.          Because the Objecting
    Employees knew the Union’s records fully documented their
    core status, it was eminently sensible for them to take the Dues
    Letter at face value as an effort to wring full membership dues
    out of them notwithstanding that the Union well knew their
    core-only status.
    The proof is seemingly in the pudding in that Local 5 has
    never claimed that its letter was a mistake or apologized for it.
    Perhaps that is why the Board contorted itself to conclude that
    no reasonable employee would view the letter as anything but
    a mistake, while withholding judgment on whether the letter
    was, in actuality, sent by mistake. Surely it is reasonable for
    the Objecting Employees to have been as confused about the
    Letter’s intent as the Board seemed to be.
    Finally, the Board is wrong that the Dues Letter did not
    16
    warn of any adverse consequence beyond suspension. The
    Letter included a substantial second threat—actually, a
    promise—of garnishment that the Letter advised was already
    underway. And that garnishment actually happened. So
    whether coercion or restraint is measured from the vantage
    point of the employee receiving the Dues Letter or the
    employee receiving a smaller paycheck because the
    forewarned garnishment materialized two weeks later, the
    Objecting Employees’ exercise of their right not to pay full
    dues was forcibly restrained by the Dues Letter and the
    garnishment it expressly set in motion.
    The Board’s effort to backhand the impact of the Dues
    Letter’s garnishment threat ignores the significant practical
    consequences that docking a paycheck could inflict on the
    many wage earners who rely on their weekly income to make
    ends meet. In fact, the Board acknowledged at oral argument
    that the actual garnishment could be “a separate violation of
    the Act.” Oral Arg. 21:05–21:16. Given that, the Board
    was obligated to factor the promise of forthcoming
    garnishment and the Letter’s role in setting the actual
    garnishment process into motion in its analysis of coercion or
    restraint.
    As for the Union, it argues that even a theft by union
    officials would fall outside the Act unless accompanied by a
    threat of termination. Oral Arg. 21:05–21:16. Thankfully,
    that is not the law.
    *****
    The Board has provided no rational basis for concluding
    that the Dues Letter’s garnishment threat and the garnishment
    process it triggered did not “reasonably tend[] to restrain or
    coerce employees” in the exercise of their Section 7 right not
    17
    to pay full union membership dues. Pomona Valley 
    Hosp., 355 N.L.R.B. at 235
    ; Enterprise Leasing Co. of 
    Florida, 831 F.3d at 543
    . Nor could the Board plausibly conclude that no
    reasonable employee could construe the Dues Letter’s multiple
    demands for an illegitimate payment, combined with a promise
    of forced withholding, as coercive. Pomona Valley 
    Hosp., 355 N.L.R.B. at 235
    . 2
    Accordingly, we grant the Objecting Employees’ petition
    for review, vacate the Board’s decision, and remand for further
    proceedings on the charge that the Local 5 engaged in unfair
    labor practices.
    So ordered.
    2
    The Board did not reach the question of proper remediation for
    Local 5’s overreach, so that issue is not before us. It remains open
    for the Board to address on remand.