For more than three decades, union leaders have done everything possible, legal or not, to skirt the Supreme Court’s Beck decision. Some very recent evidence comes from the Seattle area. Last Wednesday, June 17, Daniel Dalison, an employee of a building maintenance contractor, filed a complaint with the National Labor Relations Board against a Service Employees International Union (SEIU) local for misleading him about his right to withhold dues for functions unrelated to union business. Two months earlier, Dalison, at the time an employee at an area hospital, along with a fellow hospital employee, Roger White, had filed separate NLRB complaints against another Seattle-area SEIU local on similar grounds. Under Beck, a private-sector union must inform employees of this “opt-out” right. The dissenters appear to have a strong case, too.
Under the National Labor Relations Act of 1935, a labor union has the right of exclusive representation. That is, if a majority of employees at a given worksite vote to join a union, all workers at that site become represented. Related to that, under NLRA Section 8(a)(3), a union security clause requires that the employer fire any workers who don’t consent to the deduction of dues from their paychecks. This has been a standard clause in labor contracts. Still, union authority is not absolute. For one thing, Section 14(b) of the Taft-Hartley Act of 1947 gives states the authority to override forced-dues clauses via Right to Work laws. Currently, 27 states have such legislation on the books. For another, even in non-Right to Work states, nonunion workers covered by a union contract have a right to receive a partial dues refund. While they must pay partial dues (“agency fees”) that are applied to collective bargaining, contract administration and grievance proceedings, they have the right to withhold or recover dues that are routed toward political advocacy and other partisan functions.
The partial dues opt-out was made possible by the U.S. Supreme Court’s 1988 ruling in Communications Workers of America v. Beck. A group of about 20 nonunion employees at a CWA-contracted facility in Maryland in 1976 had sued the union to request a refund for dues routed for partisan purposes they found objectionable. Belatedly, the Court heard the case – and sided with the dissenting workers. Writing for the majority, Justice William Brennan concluded that the forced payments breached the union’s duty of fair representation and violated the workers’ First Amendment rights. A union can collect dues beyond core functions only with a worker’s affirmative consent. The Supreme Court subsequently affirmed this principle in Lehnert v. Ferris Faculty Association (1991), Air Line Pilots Association v. Miller (1998) and Knox v. SEIU Local 1000 (2012), among other cases. Unions, added the Court, must notify covered employees in writing of their Beck rights. To that effect, the U.S. Department of Labor in 2004 finalized a rule requiring federal contractors in non-Right to Work states to post such notices in “conspicuous places.”
Labor officials, fearful of losses in dues revenues, have bitterly resisted this. And they’ve created various hurdles – possibly illegal in letter and definitely dishonest in spirit – to make it as difficult as possible for individual employees to secure refunds. Unions, for example, often bury their published notifications of Beck rights in fine print and/or in places where they are unlikely to be read by many people. They also drastically narrow the time frame for a worker to request a refund; disguise the nature of partisan expenditures; and define collective bargaining-related activity so broadly as to virtually ensure dues capture. A key reason why labor officials get away with this is because they have an unofficial partner in the supposedly nonpartisan National Labor Relations Board. As Raymond LaJeunesse, Jr., vice president and legal director of the Springfield, Va.-based National Right to Work Legal Defense Foundation, noted at length several years ago in a law journal, the five-member board regularly runs cover for the unions. “To be blunt,” wrote LaJeunesse, “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…”
Enforcement, however, has become more balanced in the Trump era. Just how much more balanced will be made clearer by the outcome of a series of cases filed this year with the NLRB regional office in Seattle. In mid-April, two employees of that city’s Swedish Medical Center, Daniel Dalison and Roger White, separately accused Service Employees International Union Local 1199NW of forcing them to pay dues for political and other nonrepresentational activities. In Dalison’s case, the union allegedly informed him that if he wanted to receive copies of his membership paperwork or any other signed union documents, he had to apply in writing and appear in person with a photo ID. Dalison argued that these requirements were designed for no other purpose than to delay and hinder employees from exercising their right to resign their membership and undo their dues checkoff authorization. White, the second employee, stated that he had sent the union a letter in January indicating that he planned to exercise his right to pay agency fees only. The SEIU local subsequently admitted in a letter that 35 percent of its dues were spent on political or other non-core activities yet continued to deduct full membership dues.
In the case filed several days ago, Daniel Dalison, who now works for the Bellevue, Wash.-based Pacific Building Services, charged that SEIU Local 6 distributed misleading membership forms which authorized the union to deduct dues to which he never consented. During the initial paperwork, alleged Dalison, the union falsely informed him that he could not exercise his Beck rights beyond 31 days from his hire date and therefore had to pay full dues to keep his job. He also stated that he had sent the union letters clearly indicating that he did not want to be a member. The union responded with a letter informing Dalison that he “must have misunderstood his options,” and that, like it or not, he was a full member.
The evidence suggests that these Service Employees locals flouted the Beck ruling, which for more than three decades has served as the foundation for the right of nonunion workers under union contract cannot be forced to pay dues for non-business purposes. A lot of unions, in fact, have done their share of flouting. Mark Mix, president of the National Right to Work Legal Defense Foundation, which is representing the plaintiffs, explained last week: “Within just a few months, Seattle SEIU bosses have proved repeatedly that they will violate the rights of the workers they claim to represent just to illegally siphon dues from employee paychecks. NLRB Region 19, which is now knee-deep in pending employee charges revealing the brazen tactics of coercion engaged in by these union bosses, must immediately seek an injunction to protect workers from these egregious schemes.”
Postscript: In one of the two cases filed this April, the NLRB regional director in Seattle ruled against Roger White. Shortly thereafter, on July 7, White, again backed by the National Right to Work Legal Defense Association, announced that he was appealing the decision.