For much of the past 10 years private sector employees faced a standstill in enforcing rights under CWA v. Beck, 487 U.S. 735 (1988). Two recent developments at the National Labor Relations Board give reason to believe that enforcement of employees’ Beck rights is about to be strengthened and revitalized.
Beck, of course, is the Supreme Court decision protecting employees’ right to not be members of the labor union in their workplace and their simultaneous right to not fund the union’s political, ideological and non-representational activities. Beck held that the compulsory dues provisions of the NLRA should be construed in parallel with the Railway Labor Act’s almost identical compulsory dues provisions. And, in a series of Railway Labor Act cases starting in the 1960s, like Machinists v. Street, 367 U.S. 740 (1961) and Ellis v. BRAC, 466 U.S. 435 (1984), the Supreme Court reiterated that nonmembers of the union cannot be forced to fund non-representational activity like union political advocacy and organizing new bargaining units. The Supreme Court made these rulings based on both a constitutional and a statutory analysis.
But enforcing Beck rights has never been easy for workers covered by the NLRA. Reasons include: worker ignorance that these rights exist, because unions do not tell them of their options and have no real incentive to do so; peer pressure against workers who try to opt out; and union efforts to restrict resignations, dues checkoff revocations, and the exercise of Beck rights, all of which combine to limit when and how employees can exercise these rights. Unions have created an array of roadblocks like certified mail rules, lack of financial disclosure about how the dues are actually used, and requirements that employees renew their Beck objections each year, all of which combine to make exercise of these rights difficult.
But in addition to union-created hurdles, one of the biggest hurdles to employees’ exercise of their Beck rights has actually been the National Labor Relations Board, which has often been either hostile to Beck rights, or glacially slow in deciding the few Beck cases that get to the Board from the General Counsel. One Beck case stretched on for over twenty years, with multiple appeals and two mandamus petitions to the D.C. Circuit before the Board finally acted in favor of the injured workers. Teamsters Local 75, 329 NLRB 28 (1999), further proceedings, Pirlott v. NLRB, 522 F.3d 423 (D.C. Cir. 2008), further proceedings, 365 NLRB No. 48 (Mar. 21, 2017).
Even the Board’s recent Beck decision, United Nurses & Allied Professionals (Kent Hosp.), 367 NLRB No. 94 (Mar. 1, 2019), has so far taken nine years to litigate, and it took a mandamus petition to the D.C. Circuit to force the Board to act. (In re Geary, D.C. Cir. No. 19-1001). Part of the reason for these extraordinary delays is that many Board members see Beck cases as political “hot potatoes” they would rather not handle, or as cases that are somehow tangential to the Board’s “real” mission of certifying unions and adjudicating unfair labor practices against employers. In the past decade the Obama Board was particularly hostile to employees’ exercise of Beck rights.
Which brings us to the current reason for hope that Beck rights will soon be revitalized, which is two recent developments at the NLRB. The first is the Board’s March 1 decision in Kent Hospital. The second is the Advisory Memo issued by NLRB General Counsel Peter Robb, Memo 19-04, which signals that his office will try to minimize Union roadblocks and make it easier for employees to exercise their Beck rights in an informed and timely manner.
1) Kent Hospital decision.
Over nine years ago, in September 2009, Jeannette Geary and several other Registered Nurses at Kent Hospital in Rhode Island resigned their memberships in the United Nurses and Allied Professionals (“UNAP”) Union, and objected to paying dues and fees for union activities unrelated to collective bargaining, contract administration, or grievance adjustment, citing Beck.
The union responded by giving these employees a slightly reduced dues amount, and some charts purporting to spell out the major categories of expenses for the international union and its local union at Kent Hospital. The union asserted that its major categories of expenses were audited by a certified public accountant, but the union refused to provide Ms. Geary and the other nurses with a copy of the actual audit or the auditor’s verification letter to substantiate its reduced fee calculations. Ms. Geary then filed unfair labor practice charges against the union.
At trial, it came out that the union was spending dues money to lobby on a host of bills and legislative proposals in Vermont and Rhode Island, including:
(1) The Hospital Merger and Accountability bill (Rhode Island), that would empowered state government bureaucrats to monitor and regulate hospitals.
(2) Public Officers and Employees Retirement bill (Rhode Island) that would have raised the cap on post-retirement earnings that state-employed former nurses could earn without reducing their retirement benefits.
(3) Hospital Payments bill (Rhode Island) that would have provided all acute-care hospitals in Kent County, R.I. with extra funding.
(4) Center for Health Professions bill (Rhode Island) that would have created a bureaucracy to develop diversity guidelines in the state.
(5) Safe Patient Handling bill (Vermont) that would have established rules to protect nurses from workplace injuries.
(6) Mandatory Overtime bill (Vermont) that would have prohibited hospitals from requiring any employee to work more than 40 hours a week.
(7) Mental Health Care Funding bill (Vermont) that would have increased funding for mental healthcare services at three facilities at which the Union has bargaining units.
It won’t come as a shock to most people that in 2012, President Obama’s NLRB ruled that these lobbying expenses were all chargeable to nonmember Beck objectors because they were allegedly “germane” to collective bargaining, contract administration, or grievance adjustment. Kent Hospital, 359 NLRB 469, 474-75 (2012) (“The fact that the activity occurs within the political sphere does not change our core analysis. So long as lobbying is used to pursue goals that are germane to collective bargaining, contract administration, or grievance adjustment, it is chargeable to objectors”).
Besides adopting this completely amorphous “germaneness” test for what is chargeable to nonmembers, and despite being completely being wrong on the law of chargeability as outlined in Beck and the Supreme Court’s Railway Labor Act cases, that 2012 decision by the Obama Board was wrong for another fundamental reason: the Board members who issued the decision were illegally appointed, because President Obama violated the constitution by making purported “recess appointments” when the Senate was not in recess. Thus, the initial 2012 decision in Kent Hospital was void ab initio under NLRB v. Noel Canning, 573 U.S. 513 (2014).
In 2013, the NLRB achieved a quorum of validly confirmed members, and the Kent Hospital case was ready to be re-decided. However, instead of issuing a new decision promptly, the case languished for over 5 years with no decision – presumably because many Board members felt the Beck issue was a “hot potato” and a low priority. It was then that Ms. Geary filed a mandamus petition in the D.C. Circuit to force the issuance of a decision. (In re Geary, D.C. Cir. No. 19-1001). The D.C. Circuit reviewed the mandamus petition and ordered the NLRB to respond, and it was then, one working day before the response was due, that the NLRB issued the decision.
Despite the long and tortured history of the Kent Hospital case, the good news is that the NLRB ruled 3-1 that union lobbying is never chargeable to nonmembers. The Board relied on a host of Supreme Court and court of appeals cases to recognize that lobbying is pure political activity, which is outside of the union’s representational responsibilities and duties. In other words, the Board recognized that the union is certified to represent employees vis-a-vis their employer, not to serve as a political spokesman that will pick and choose which laws and social policies need to be enacted or repealed. And this is true even where the legislation is closely related to a collective bargaining topic, and will directly affect the bargaining or the contract. Lobbying a state legislature does not become a union representational function simply because the proposed legislation involves a matter that may also be the subject of collective bargaining.
For example, the Board relied on the D.C. Circuit’s important decision in Miller v. Air Line Pilots Assn, 108 F.3d 1415 (D.C. Cir. 1997), a Railway Labor Act case. There, the pilots’ union was lobbying Congress and federal agencies on airline safety issues. And what could be more important and directly related to bargaining, and the pilot union’s representational function, than airline safety? Yet, the D.C. Circuit rejected the union’s claim that this safety-related lobbying was somehow nonpolitical because all pilots share a common concern with these activities. As the court said:
“That the subject of safety is taken up in collective-bargaining hardly renders the union's government relations expenditures germane. Under the union’s reasoning, union lobbying for increased minimum wage laws or heightened government regulation of pensions would also be germane. Indeed, if the union's argument were played out, virtually all of its political activities could be connected to collective-bargaining.”
Id. at 1422.
Another example might be where a union lobbies against enactment of a state Right to Work law. The union could plausibly argue that such lobbying is intimately related to its collective bargaining agreement and ability to enforce its existing compulsory dues clause. But, would any neutral observer say that union lobbying against a state Right to Work law was “non-political” and part of legitimate collective bargaining?
The bottom line is that Kent Hospital has now drawn a clear line to protect employees’ rights to not fund any political activity. This ruling is in keeping with Beck and the First-Amendment type interests that underlie all of the Supreme Court’s compulsory dues cases. Abrams v. CWA, 59 F.3d 1373 (D.C. Cir. 1995); Penrod v. NLRB, 203 F.3d 41 (D.C. Cir. 2000).
The dissenter in Kent Hospital, Member McFerran, would have allowed some of the lobbying to be charged to nonmembers, under the theory that each lobbying expenditure needs to be evaluated separately, depending on how close or how far it is from bargaining table issues. However, her dissent is flawed for two reasons.
First, Member McFerran does not take into account the burden that her system places on workers to object year after year, and litigate against a big and wealthy union year after year, to try to separate out the chargeable vs. nonchargeable lobbying. In other words, Member McFerran’s expenditure-by-expenditure challenge system places a huge litigation burden on nonmembers to fight the union every year and litigate every year, although she never recognizes this as a burden on the workers who must go through this difficult and expensive litigation process annually just to retain a small amount of money to which they should never have been charged in the first place. (Justice Black made the same point in his famous dissent in Int'l Ass'n of Machinists v. Street, 367 U.S. 740, 791-98 (1961)).
Second, the dissent is flawed because Member McFerran does not cite a single federal court precedent supporting the idea that nonmembers can be charged for such blatantly political activity. Her only citation is to a 1999 Clinton-era Board case that barely analyzed the issue, and pre-dated recent public sector cases like Knox v. SEIU Local 1000, 567 U.S. 298 (2012), Harris v. Quinn, 573 U.S. 616 (2014) and Janus v. AFSCME Council 31, 138 S. Ct. 2448 (2018), all of which shed light on the First-Amendment type employee interests involved in forced subsidization of union lobbying and political activity.
In short, Kent Hospital goes a long way towards clarifying the standards of what nonmember employees may owe the union, and greatly reduces the amount of compulsory fees they can be forced to pay.
General Counsel Memo 19-04
The second major development that will help revitalize Beck rights is General Counsel Memo 19-04. For those who may be unfamiliar with NLRB procedures, cases do not get to the Board for adjudication unless the General Counsel issues a formal complaint and brings them to the Board after a charge is filed. Many General Counsels, and certainly the ones appointed by Presidents Obama and Clinton, have been blatantly hostile to Beck rights and generally refused to move these cases forward. But the current General Counsel, Peter Robb, has shown himself to be open to protecting employee rights to make informed choices and not fund political and social agendas they oppose.
General Counsel Memo 19-04 advances the ball for Beck objectors in four important respects, and I will point out that National Right to Work Foundation attorneys have filed cases raising all of these issues, so the memo is largely in response to that litigation.
First, the General Counsel takes the position that the Board should overrule Food & Commercial Workers Local 700 (Kroger Ltd. Partnership), 361 NLRB 420 (2014), and require unions to provide reduced fee information to employees up front, in an initial Beck notice, before they have to make choices about their membership status. This allows all workers to make informed decisions as to whether to even become Beck objectors. Such up front disclosure is only fair given the ramifications of the choice to join the union or refrain. And, Kent Hospital supports this view that employees’ access to financial disclosure should be expanded, as it held that Beck objectors are entitled to a full audit report once they object.
Second, the General Counsel takes the position that the Board should overrule Frito-Lay, 243 NLRB 137 (1979), which restricted the right of employees to revoke their dues check-off authorization after the collective bargaining agreement expired. This is important because an employee can hardly exercise Beck rights if full union dues are flowing out of his or her paycheck via automatic payroll deduction, and the employee is being prevented from revoking that checkoff.
Third, the General Counsel opines that a requirement that employees must use certified or registered mail to communicate their resignations or checkoff revocations to the union is unlawful restraint and coercion, and that such restrictions should be challenged. This is important because, as discussed at the outset, union have become adept at using all kinds of tricks and procedures to hold people in. For example, in one recent case, IBEW Local 58 v. NLRB, 888 F.3d 1313 (D.C. Cir. 2018), the union issued a decree that employees had to show up in person at the union hall with a photo ID in order to resign their memberships or revoke their checkoffs. The NLRB and the D.C. Circuit had no problem striking down that restrictive policy, but yet the unions continue to try such tactics.
Finally, the General Counsel says that where a union asserts that a dues checkoff revocation is somehow untimely or invalid, “the union must either inform the employee of the specific next period where revocation can be effected or inform the employee that the request will be honored at the next available revocation period.” Where unions fail to do this, the General Counsel directs the regional offices to issue duty of fair representation complaints.
General Counsel Memo 19-04 is a great step forward in helping employees assert their Beck rights, and in making it easier for them to do so based on full information.
In summary, these two recent developments by both the NLRB and the General Counsel give hope that Beck rights will once again be honored and enforced. Partially because of the success of the Janus case that freed all public sector employees from having to pay any forced dues, people have tended to forget about, or downplay, Beck rights for private sector employees. But those rights are now being revitalized and protected by the current NLRB.