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 contract to pay dues for purposes beyond those related to collective bargaining.  The Supreme Court cogently expressed this view in its landmark 1988 ruling, Communications Workers of America v. Beck.  Yet it is 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, he argues, 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 voting workers at a private-sector work site preferred to join a union, then all workers at that site become unionized.  That includes those who voted against unionization or who didn’t vote at all.  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 “security clauses” that effectively force an employer to fire workers who don’t consent to having dues deducted from their paychecks.  Labor officials readily employ this power to maximize their dues collections.

Section 8(a)(3) was a gift to the unions.  Yet it is not completely encompassing.  For one thing, Section 14(b) of the Taft-Hartley Act of 1947 authorizes individual states to override forced-dues security clauses via “Right to Work” laws.  Thus far, 25 states have passed such legislation.  Though the initial rush of Right to Work laws ended decades ago, in recent years the Midwestern union strongholds of Indiana, Michigan and Wisconsin have enacted their own statutes despite powerful union opposition.  For another, even in non-Right to Work states, nonunion workers covered by an active contract have a right to receive a partial refund of their dues payments.  While they must pay for collective bargaining and related activity (e.g., contract administration, grievance proceedings), they can get back the portion of funds representing donations to political and other forms of express advocacy.

This latter opening has been made possible by the courts, most of all, the U.S. 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 only 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 they considered objectionable.  Belatedly, the Court heard the case in 1988.  That June, the Court sided with the dissenting workers.  Justice William Brennan, writing for the majority, concluded that the agency fees in this instance were too high to justify the union’s claim that the money covered only collective bargaining issues.  Moreover, he wrote, these forced payments breached the union’s duty of fair representation and violated worker First Amendment rights.

The principle behind the ruling can be found in a host of Supreme Court decisions, some even predating Beck itself.  In Ellis v. Railway Clerks (1984), the Court 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 Association v. Miller and Marquez v. Screen Actors Guild.  It also would rule similarly in the public-sector cases of 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 chosen to stonewall employees seeking 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 this kind of abusive behavior.  It was set up 80 years ago as an independent five-member body to protect freedom of contract for individual employees, whether unionized or not.  It was not set up to advance specific interests of either unions or employers.  But the NLRB hasn’t followed its mission.  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 and without pulling punches.  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 legitimate cases to be heard.  The board’s General Counsel’s Office back in 1994 instructed regional directors either to dismiss complaints outright or 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.  In addition, the board often dispenses with the pretense of reviewing a case, preferring instead to settle Beck-related complaints without any relief for dissenting employees.  If a group of plaintiffs do manage to win a review, they 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 in a number of ways has refused to follow controlling Supreme Court and Courts of Appeals precedents.

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, often inside its own agitprop publications, which dissenting workers typically 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 hardly is transparent. Yet to this day, the NLRB uses the 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 the practice of 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 it files 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.”  Despite the reversal, the board has continued to follow its Penrod ruling, making its resistance explicit in United Food & Commercial Workers Local 700.  The NLRB habitually has ignored precedent from federal courts in favor of its own interpretations.

Fourth, the NLRB has gone along with the union practice of defining “collective bargaining” so broadly as to include just about any activity as applicable, in so doing rendering unions all but immune to challenge.  In United Nurses (2012), the board majority held:  “(S)o long as lobbying is used to pursue goals that are germane to collective bargaining, contract administration or grievance adjustment, it is chargeable to objectors.”  This is true, the NLRB said, even if the bills lobbied “would not provide a direct benefit to members” of the objectors’ bargaining unit, even if the bills were before the legislature of another state.” Back in 1997, in Miller v. Air Line Pilots Association, the majority similarly had held that “issues that animate much of its collective bargaining…should be regarded as germane to that bargaining” and thus chargeable.  The following year, at least, a District of Columbia federal circuit court overruled the board, a decision that the U.S. Supreme Court later upheld.  Even more convincing was the Supreme Court ruling three years ago in Knox, in which a California public employees union had contended that the costs it incurred to defeat a statewide ballot proposition were “germane” to future implementation of collective bargaining agreements.  The High Court, in rejecting this view, held:  “If we were to accept this broad definition of germaneness, it would effectively eviscerate the limitation on the use of compulsory fees to support unions’ controversial political activities.”

All of this is highly discouraging.  Worse yet, the prospects for reform are not good.  The National Labor Relations Board, along with its 26 regional offices, constitute a large bureaucracy.  And its budget has been escalating, even as caseloads have declined.  In addition, the Board is a creature of political partisanship.  By custom, three members of the full NLRB belong to the party in power and the other two members belong to the party in opposition.  During a Democratic administration, the board consists of three Democrats and two Republicans.  And because Democratic board members inevitably come from a strongly pro-union background, typically either as union lawyers or congressional staffers, organized labor during the Obama years has enjoyed a 3-2 NLRB majority working on its behalf.  Even a Republican administration won’t necessarily turn the tables.  Until two years ago, the board for years had operated short at least one member – for a while, in fact, with only two members, one short of a necessary quorum.  Another roadblock is that the Office of the General Counsel, as much as any board member, sets the tone of NLRB opinions, rulings and enforcement practices.  Even with a Republican majority, the General Counsel, at least for while, would continue to be Richard Griffin, a Democrat and former attorney for the International Union of Operating Engineers.  He is anything but a friend of Beck enforcement.  That leads to a question:  Why should dissenting workers be at the mercy of the prevailing political winds?

There are two proven mechanisms for circumventing the NLRB’s inability or reluctance to defend the rights of nonunion employees at a unionized workplace:

“Paycheck protection” laws.  Such legislation requires unions to ask workers, in advance, whether or not they wish to have a certain portion of their dues routed toward partisan causes.  In other words, rather than have to go through interminable delays in an effort to get deducted money back, workers can decide beforehand to receive exemptions.  This “opt-in” (as opposed to “opt-out”) feature frees dissenting workers from arbitrary exercises of union political power, and by extension, from the NLRB bureaucracy.  Michigan, Washington State and Wyoming have enacted paycheck protection laws as applicable to the private and public sectors.  Idaho and Utah have enacted such laws as applicable to the public sector only.  And over a dozen states at one point or another have considered bills.  Experience has shown that union political spending falls significantly with such legislation in force.

Right to Work legislation.  Authorized by Section 14(b) of the Taft-Hartley Act of 1947, these laws – 25 states have enacted them – bar unions from inserting “security” clauses into collective bargaining agreements and thus from forcing employers to fire nonpaying workers.  The great advantage of Right to Work laws is that they focus on the origin rather than the destination of union revenues.  Whereas paycheck protection laws implicitly assume that forced unionism is acceptable as long as dues are routed toward “good” causes, Right to Work laws explicitly state that forced dues payments are unacceptable, regardless of how the money is spent.  Ideally, Congress should enact national legislation on this score.  Supporters over the years have introduced many such bills, in fact, but have achieved nothing close to even a full floor vote.  Still, non-Right to Work states, one by one, have the option of adopting their own Right to Work laws.

The Beck decision remains as sound today as when it was handed down 27 years ago.  Its failures are those of enforcement, not principles.  Yet as long as the National Labor Relations Board is in charge of adjudicating disputes, the ruling will remain marginally effective at best.  LaJeunesse concludes:  “(T)here is a systemic problem with the enforcement of Beck rights.  Since Beck was decided in 1988, the NLRB has dismally failed to protect adequately the statutory rights of workers not to subsidize union political, ideological and other non-bargaining activities.  Indeed, the Board majority under President Obama seems bent on totally eviscerating those rights.”  It would be hard to argue otherwise.

Related:

Wisconsin Enacts Right to Work Law; Unions, Obama Strike Back

Supreme Court Agrees to Hear Challenge to Forced Public Employee Unionism

Supreme Court Rules against SEIU in Knox Case; Protects Liberty

Senator Hatch Unveils Employee Rights Act to Reform Labor Law

Alcoa Workers in Ohio Accuse Union of Suppressing Dissent