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NLRB Blasted for Lax Enforcement of Beck Rights
By now it is settled judicial opinion: A private-sector union can’t force nonunion employees under union contract to pay dues for purposes beyond collective bargaining. The U.S. Supreme Court cogently expressed this view in its landmark 1988 ruling, Communications Workers of America v. Beck. Yet it almost as if the decision never happened. A new law journal article by prominent Right to Work attorney Raymond LaJeunesse, Jr. explains why. He points a finger not only at the unions, who at least act out of recognizable self-interest, but more importantly, at the ostensibly nonpartisan National Labor Relations Board. The NLRB, using a variety of tactics, over the years has acted more as a de facto advocate for unionism than as a guardian of the public trust. And the situation has gotten worse under President Obama.
Labor unions long have operated with a grant of monopoly powers under the National Labor Relations Act of 1935. For one thing, the NLRA gives unions the right of exclusive representation. That is, if a majority of workers at a given private-sector work site express a desire, via secret ballot election, then that site becomes unionized. And the result overrides the non-joining minority. In addition, and apropos to the issue at hand, Section 8(a)(3) of the Act authorizes unions to impose contract provisions that “require as a condition of employment membership.” That includes union “security clauses” into collective bargaining agreements that effectively force an employer to fire workers who don’t consent to having dues deducted from their paychecks. Labor officials have proven ready to employ this mechanism in order to maximize dues collections.
Section 8(a)(3) was a gift to the unions. Yet its reach is not all-encompassing. For one thing, Section 14(b) of the Taft-Hartley Act of 1947 authorizes individual states to override this forced-dues clause via “Right to Work” laws. Thus far, 25 states have passed such legislation. Though the initial rush of Right to Work laws long is over, in recent years the organized labor strongholds of Indiana, Michigan and Wisconsin have enacted their own protections – and despite powerful opposition from unions and their allies. For another, even in non-Right to Work states, nonunion workers covered by an active contract have a right to receive a partial refund on dues payments. While they must pay for collective bargaining and related activity (e.g., contract administration, grievance procedures), they can withhold funds representing the donations to political and other advocacy.
This latter type of opening has been made possible by the courts, most of all, the Supreme Court. A major break occurred in 1963 when the High Court, in NLRB v. General Motors Corp., ruled that “the burdens of membership upon which employment may be conditioned are expressly limited to the payment of initiation fees and monthly dues.” The decision established the right of covered nonunion employees to pay partial dues, commonly referred to as “agency fees.” An even bigger breakthrough came 25 years later in the Supreme Court’s decision in Communications Workers of America v. Beck. A group of 20 nonunion employees at a CWA-covered agency shop in Maryland had sued the union back in 1976 for a refund on the portion of their dues going toward political purposes that they considered objectionable. The case belatedly reached the Supreme Court in 1988. In June of that year, the Court sided with the dissenting workers. Justice William Brennan, writing for the majority, concluded that agency fees in this instance were too high to justify any claim of covering only collective bargaining issues. Moreover, he wrote, these forced payments breached the union’s duty of fair representation and violated the workers’ First Amendment rights.
The Beck principle can be found in a host of Supreme Court decisions. In Ellis v. Railway Clerks (1984), the Court already had interpreted the National Railway Act (which applies to railroad and airline employees) as allowing nonunion employees in a collective bargaining unit to withhold payment of dues for non-representational purposes. The Court would affirm this principle in a pair of 1998 rulings, Air Line Pilots v. Miller and Marquez v. Screen Actors Guild. It also would rule similarly in public-sector cases such as Chicago Teachers Union v. Hudson (1986), Lehnert v. Ferris Faculty Association (1991), Davenport v. Washington Education Association (2007), and most recently, Knox v. SEIU Local 1000 (2012). Unfortunately, union leaders have paid little heed, except when they can stonewall employees seeking partial refunds. And because payments are deducted beforehand, minus prior employee consent, unions hold the upper hand.
In theory, the National Labor Relations Board should be one of the first lines of defense against abusive union behavior. It was set up 80 years ago as an independent five-member body to protect freedom of contract for individual employees, unionized or not. It was not set up to advance the specific interests of either unions or employers. Unfortunately, events haven’t necessarily followed the script. A new article appearing in the New York University Annual Survey of American Law, Volume 70, Issue 3 (2015), authored by Raymond LaJeunesse, Jr., vice president and legal director for the Springfield, Va.-based National Right to Work Legal Defense Foundation, explains why. The author doesn’t pull any punches: The NLRB all too often has acted as a de facto advocate for unions. He states: “(T)o be blunt, the NLRB has failed to enforce Beck vigorously, both in processing cases and applying judicial precedent. This problem got even worse under the Board appointed by President Obama, which the Supreme Court, in Noel Canning v. NLRB, held did not have a constitutionally valid quorum for much of its tenure.”
The National Labor Relations Board has devised a number of ways to avoid responsibility for guarding Beck rights for dissenting nonmember employees? In the first place, it has made it difficult for potentially legitimate cases to get heard. The board’s General Counsel’s Office back in 1994 instructed regional directors to dismiss complaints outright or to route them to the NLRB’s Division of Advice. The latter course of action has been especially common during the Obama years, initially under then-Acting General Counsel Lafe Solomon and now under General Counsel Richard Griffin. Moreover, the board often dispenses with the pretense of reviewing a case, preferring instead simply to settle Beck complaints minus any relief for employees. If a case does win a review, the dissenting workers are at a distinct disadvantage, for the burden of proof effectively is entirely on them. As LaJeunesse notes: “It is impossible for nonmembers to provide evidence or leads to evidence at the charge stage, because nonmembers do not have access to a union’s financial and other records; only the union possesses the facts and records from which the proportion of chargeable expenses ‘can reasonably be calculated.’”
The NLRB’s resistance to Beck goes beyond its cumbersome and obstinate internal bureaucracy. More egregiously, the board has refused to follow controlling Supreme Court and Courts of Appeals precedents. It has done this in a number of ways.
First, the Beck decision explicitly requires unions to apprise all workers within their respective bargaining units of their “Beck rights.” In other words, employees have a right to know that they are entitled to a partial refund. Unions typically don’t comply with the spirit of the decision, even if they do comply with the letter. When they serve notice, they hide it in fine print, especially inside its own agitprop publications, which dissenting workers understandably are reluctant to read. In California Saw and Knife Works (1995), the board’s very first post-Beck case on fee payment exemptions, the Machinists union published its notice of worker rights on the sixth page of an eight-page newsletter. That wasn’t too transparent. Yet to this day, the NLRB uses this case as a precedent.
Second, the National Labor Relations Board, in California Saw and subsequent cases, has justified the union practice of creating procedural hurdles for workers to obtain key information, especially by creating only a brief window of opportunity – typically at most a month out of a year – and requiring annual renewal of objections. LaJeunesse rightly asks: “Why should constitutional rights be available only once a year?” The NLRB, rather than ponder such a question, has preferred to evaluate worker objections on a case-by-case basis. In upholding United Auto Workers-imposed requirements, the Board in 2011 found this requirement to be de minimis (i.e., too small consider), without even considering the union’s justifications. Yet NLRB Member Brian Hayes, in his dissent, had determined that the UAW’s scheme was anything but de minimis.
Third, the Board has supported unions disguising the nature of their spending. A decade and a half ago, for example, in International Brotherhood of Teamsters Local 166 (Penrod), the NLRB ruled that a union does not have to disclose any financial information to nonmembers until after filing an objection. Following a worker appeal, the D.C. Circuit Court reversed that decision, holding that “new employees and financial core payors…must be told the percentage of union dues that would be chargeable were they to become Beck objectors.”
Source: http://nlpc.org/stories/2015/08/27/law-review-article-blasts-nlrb-lax-enforceemnt-beck-rights
