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In Communications Workers v. Beck (1988), the Supreme Court held that the National Labor Relations Act “authorizes the exaction [from nonmember employees] of only those [union] fees and dues necessary to ‘performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.’” But Beck did not flesh out precisely which union expenses were mandatory (“chargeable”) for nonmembers and which were not (“nonchargeable”), and the National Labor Relations Board and the courts have been slow to precisely denominate which union activities may be supported with nonmembers’ compelled fees.
On March 1, 2019, in United Nurses and Allied Professional (Kent Hospital), the NLRB announced that unions may never charge nonmembers for union legislative or political lobbying, even if the subject of the lobbying “may in general relate to terms of employment or may incidentally affect collective bargaining.” According to the NLRB, “lobbying activity is not a representational function simply because the proposed legislation involves a matter that may also be the subject of collective bargaining.” Kent Hospital is an important decision delineating limits for nonmember employees in the private sector who wish to disassociate from the union’s political and social activities.
Do these developments herald a new era of Beck enforcement and employee free choice in the private-sector workplace? Please join us for a discussion of these issues and trends with Glenn Taubman, a long-time attorney with the National Right to Work Legal Defense Foundation, who represents Jeanette Geary, the Charging Party in the Kent Hospital case.
Glenn Taubman, Staff Attorney, National Right to Work Legal Defense and Education Foundation
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Operator: Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Labor and Employment Law Practice Group, was recorded on Thursday, March 14, 2019, during a live teleforum conference call held exclusively for Federalist Society members.
Wesley Hodges: Welcome to the Federalist Society’s teleforum conference call. This afternoon’s topic is "Communications Workers v. Beck Revitalized." My name is Wesley Hodges, and I’m the Associate Director of Practice Groups at the Federalist Society.
As always, please note that all expressions of opinion are those of the expert on today’s call.
Today, we are very fortunate to have with us Mr. Glenn Taubman, who is Staff Attorney at the National Right to Work Legal Defense Foundation. After our speaker gives his remarks today, we’ll move to an audience Q&A, so please keep in mind what questions you have for the cases he discusses, for the topic, or for just our speaker himself. Thank you very much for speaking with us today, Glenn. The floor is yours.
Glenn Taubman: Thank you, Wesley, and good afternoon everybody. Thanks for having me and hosting this teleforum. I decided to call this talk "CWA v. Beck Revitalized" because, for much of the past ten years, private sector employees have faced a standstill in enforcing Beck rights. But recent developments at the National Labor Relations Board provide some cause for hope that this is changing. First, I’ll give some background about the Beck line of cases, and then I’ll discuss the current developments at the National Labor Relations Board. Beck rights, as most of you know, concern employees’ right to not be members of the labor union in their workplace, and employees’ simultaneous right to not fund union’s political, ideological, and non-representational activities.
In 1988, the Supreme Court held in CWA v. Beck that the compulsory dues provisions of the National Labor Relations Act should be construed in parallel with the Railway Labor Act's almost identical compulsory dues provision. And in a series of Railway Labor Act cases, starting in the 1960s, like BRAC v. Allen and Machinists v. Street and up to Ellis v. BRAC in the 1980s, the Supreme Court has reiterated that non-members of the union cannot be forced to fund non-representational activities like union political advocacy and organizing new bargaining units. In the Railway Labor Act cases, the Supreme Court made those rulings based on both a constitutional and a statutory analysis. But enforcing Beck rights has never been easy for workers covered by the National Labor Relations Act, and there are many reasons for this.
Among them, worker ignorance of these rights because unions have no incentive to inform them of the rights, peer pressure against workers who try to opt out, and union efforts to restrict resignations, due’s checkoff revocations, and the exercise of Beck rights, all of which combine to limit when and how employees 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 these union created hurdles, one of the biggest hurdles to employee’s exercise of their Beck rights has actually been the National Labor Relations Board, which has often been either hostile to Beck rights or glacially show in deciding the few Beck cases that get to the board from the general council.
One Beck case, Pirlott v. National Labor Relations Board, stretched on for over 20 years, with multiple appeals and two mandamus petitions to the D.C. Circuit before the Board finally acted in favor of the workers. The case that we are going to discuss in a few moments, the Kent Hospital case that was decided just last week, 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. Part of the reason for these extraordinary delays is that many board members see Beck cases as political hot potatoes that 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, and all of the litigation that employees brought was basically in a defensive posture. Which brings us to the current reason for hope that Beck rights will soon be revitalized, which is two recent developments at the National Labor Relations Board. The first is the Board’s March 1 decision in the Kent Hospital case, which I will discuss in a moment. The second is the advisory memo issued about three weeks ago by NLRB General Counsel Peter Robb, 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. And both developments taken together herald a new revitalization of Beck rights. So first, let’s discuss the Kent Hospital decision of the Board.
Over nine years ago, in September 2009, Jeanette Geary and several other registered nurses at Kent Hospital in Rhode Island resigned their memberships in the United Nurses and Allied Professionals 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 how the major categories of union expenditures were made. The union asserted that it’s 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 an unfair labor practice charge against the union.
At trial, it came out that the union was spending dues money lobbying on a host of bills and legislative proposals in Vermont and Rhode Island, including the Hospital Merger and Accountability Act that would empower state government bureaucrats to monitor and regulate hospitals, Public Officers and Employee Retirement Bill that would have raised the cap on post-retirement earnings that state-employed former nurses could earn without reducing their retirement benefits, a Hospital Payments Bill that would have provided all acute care hospitals in Kent County Rhode Island with extra funding, the Center for Health Professions Bill that would have created a bureaucracy to help diversify state employment, the Safe Patient Handling Bill that would have established rules to protect nurses from workplace injuries, a Mandatory Overtime Bill that would have prohibited hospitals from requiring any employee to work more than 40 hours a week, and finally, a Mental Health Care Funding Bill that would have increased funding for mental healthcare services at three facilities at which the union had bargaining units.
Now, it won’t come as a shock to anyone that, in 2012, President Obama’s National Labor Relations Board ruled that all of this political lobbying was chargeable to non-member Beck objectors because these expenditures were allegedly germane to collective bargaining, contract administration, and grievance adjustment. As the Obama Board said, and this is a quote, “The fact that the activity occurs within the political sphere does not change our core analysis. So long as lobbying is used to fund goals that are germane to collective bargaining, contract administration, and grievance adjustment, it is chargeable to objectors.” So the Obama NLRB said even non-members have to pay for direct union political activity.
Besides adopting this completely amorphous test for what is chargeable to non-members and despite being completely wrong on the law of chargeability as outlined in Beck and the Supreme Court’s Railway Labor Act cases, the 2012 Obama Board decision was wrong for another fundamental reason. The board members who issued that decision were illegally appointed because President Obama violated the Constitution by making purported recess appointments when the Senate was not in recess. So the initial bad 2012 decision in Kent Hospital was void under the Supreme Court’s Noel Canning decision that threw out the Obama recess appointments.
In 2013, the NLRB achieved a quorum of validly confirmed members and the Kent Hospital case was ready to be redecided. However, instead of issuing a new decision promptly, the case languished for over five years with no decision, presumably because many board members felt that the Beck issue was a hot potato and a low priority.
It was then, just this past year, that Ms. Geary filed a mandamus petition in the D.C. Circuit to force the issuance of a decision. The D.C. Circuit reviewed the mandamus petition and ordered the NLRB to respond. And it was then, one working day before the NLRB’s response was due, that the NLRB issued the Kent Hospital decision. Now, despite the long and tortured history of this Kent Hospital case, the good news is that the Board ruled 3-1 that union lobbying is never chargeable to non-members. 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-à-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 of that 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.
Now, in its decision, the Board relied on a D.C. Circuit decision in a case called Miller v. Airline Pilots, a Railway Labor Act case. And what happened there is a good example of how lobbying cannot be, and should not be, chargeable to non-members. There in the Miller case the pilots’ union was lobbying Congress and federal agencies on safety issues. So you might ask 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, Judge Silberman, rejected the union’s claim that the safety-related lobbying was somehow non-political because all pilots share a common concern with safety.
As the Court said, and I quote, “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,” Judge Silberman said, “if the union’s argument were played out, virtually all of its political activities could be connected to collective bargaining.” So I would add to that another example. For example, suppose a union lobbied 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 its ability to enforce its existing compulsory dues clause. But no neutral observer would say that lobbying against a state right-to-work law was non-political.
The bottom line is that the Kent Hospital decision has now drawn a clear line to protect an employee’s right 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. Now, I want to point out that there was a dissent in Kent Hospital. The dissenter, Member McFerran, would have allowed some of the lobbying to be charged to non-members under the theory that each lobbying expenditure needs to be evaluated separately, depending upon how close or how far it is from bargaining table issues. However, her dissent is flawed for two main reasons.
First, she 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 sever out the chargeable versus non-chargeable lobbying. In other words, Member McFerran’s case-by-case system places a huge litigation burden on non-members to fight the union every year and litigate every year. Though she never recognizes it, this is a burden on the workers who must go through this difficult and expensive litigation process annually, just to reclaim a small amount of money to which they should have never been charged in the first place. By the way, I want to point out that Justice Black, in his famous decent in Machinists v. Street in the ‘60s, said the same thing, that this sort of annual rebate-refund system doesn’t protect the workers’ rights but places a huge litigation burden on them. So he said that that is why all of this forced dues systems are unconstitutional, and Member McFerran doesn’t recognize any of this in her dissent.
Secondly, the dissent is flawed because it does not cite a single federal court precedent supporting the idea that non-members 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 public sector cases like Knox, Harris, and Janus, all of which shed light on the First Amendment-type activity that employees engage in when they fight subsidization of lobbying and political activity. So in short, Kent Hospital goes a long way towards clarifying the standards of what non-member employees may owe the union and greatly reduces the amount of compulsory fees they can be forced to pay because no amount of lobbying and no amount of politics can be charged to them.
Now, the second development at the Board that I want to get to is the General Counsel memo called 19-04, GC 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. The General Counsel has unreviewable discretion to bring cases forward. And if they refuse to bring them forward, that’s the end of the case. Many general counsels, and certainly the ones appointed by President Obama and President Clinton, have been blatantly hostile to Beck rights and generally refuse 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 the political and social agendas they oppose.
The recent General Counsel memo advances the ball for Beck objectors in four important respects, and I will also point out that the National Right to Work Foundation has filed cases raising all of these points. So the memo that General Counsel Robb issued is actually largely in response to that pending litigation.
So the four points in the memo are, first, the General Counsel takes the position that the Board should overrule a case called Kroger and require unions to provide reduced fee information to employees upfront in initial Beck notice before they have to make choices about their membership status. This allows all workers to make informed choices as to whether to even become Beck objectors. Such upfront disclosure is only fair, given the ramifications of the choice that they have to make about joining or refraining.
And the Kent Hospital decision that we were just speaking of actually supports this view, that employees’ access to financial exposure should be expanded, as Kent Hospital held that Beck objectors are entitled to a full audit report as soon as they object.
Second, the General Counsel takes the position that the Board should overrule a case called Frito Lay, which restricted the right of employees to revoke their dues checkoff authorizations after the collective bargaining agreement expired. According to the General Counsel, any dues checkoff authorization that restricts the statutory right of employees to revoke their authorizations at the expiration of a current contract, or during a period in which no contract is in effect, is improper and unlawful.
Now, this is very important because an employee can hardly exercise his Beck rights to pay reduced fees 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 and stopping the outflow of money. So this is the second point of the General Counsel memo to make it easier for employees to stop the outflow of money.
Third, the General Counsel says 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 also important because, as I mentioned at the outset, unions have become adept at using all kinds of tricks and procedures to hold people in. For example, in one recent case that went to the D.C. Circuit called IBEW Local 58 v. NLRB, 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 membership or revoke their checkoffs. The NLRD and the D.C. Circuit had no problem striking down that restrictive policy, but yet unions continue to try such tactics to make it harder for employees to get out.
And 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 when a revocation would be effective or inform the employee that the request will be honored at the next available revocation period. So that is another way in which the General Counsel is saying unions cannot put down roadblocks to make it harder for employees to disassociate from the union. The bottom line of this General Counsel memo by General Counsel Robb is that it’s 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.
So in summary, these two recent developments by both the NLRB and General Counsel give us hope that Beck rights will once again be honored and enforced. Partially because of the success of the Janus case that freed 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, hopefully, protected by the current NLRB. So with that long discussion, I think it’s time for me to stop and take questions. And hopefully, everybody followed with the overview and with the discussion of these two major developments at the Board. So thank you very much, Wesley.
Wesley Hodges: Well, thank you so much, Glenn. While we wait for any audience questions, Glenn, I’d like to ask you one of my own. You touched on this in your remarks already, but how difficult is it for employees to exercise Beck rights right now?
Glenn Taubman: Thanks for the question. You know, this is an issue that I would say is a little near and dear to my heart because I’ve been doing this for a long time, and it never ceases to amaze me how unions continue to come up with schemes to hold people in and to make it more difficult for them to exercise their Beck rights. I mean, back in the ‘80s, the Supreme Court decided the Pattern Makers case that said employees have the absolute right to resign their memberships at will, but yet unions have continued to try “Well, you can only resign by certified mail. You can only revoke during the window period.” The recent case that I mentioned, the D.C. Circuit case in IBEW Local 58 where the union actually adopted a policy that said, if you want to resign or revoke your dues, you have to show up in person at the union hall with a photo ID in order to resign.
Which I love that because, if you were asked to show a photo ID to vote, there would be an outcry. But they say, "Well, you need a photo ID and to show up in person in order to resign your union membership.” So you know, unions are constantly, cleverly throwing down roadblocks to make it difficult for employees to get out. And then, of course, the assertion of Beck rights is even the next step because you can only assert Beck rights if you’re a non-member. So first, you have to be a non-member. Then, you have to assert your Beck rights. So thankfully, we’re seeing a little bit less of this, but they still try with checkoff window periods and certified mail and things like that. And by the way, the Obama General Counsel upheld certified mail rules.
The new General Counsel, Peter Robb, in his memo is saying that it violates the act to force people to use certified mail because it’s just burdensome and harassing in the modern world. So the short answer is, to your question, yes, unions have tried to make it difficult, and we’re doing our best to make it as easy as possible.
Wesley Hodges: Well, thank you, Glenn. It does look like we have two questions in the audience. Let’s go ahead and move to our first caller.
Rod Sullivan: Hi, this is Rod Sullivan in Jacksonville, Florida. Glenn, I see that in the order of the court, or I should say the Board, required the union to refund ten years of overcharges to non-member employees. Do you have any idea how much money that might be, and is this going to extend beyond the single respondent in this case to other potential cases?
Glenn Taubman: So the first part of that, I do not know how much money. This is going to be a compliance issue when the case goes back to the region. So I don’t have any idea of those figures. Plus, there will be interest added on, so I really don’t know that. But the answer to the second part of your question, the remedy is for Jeanette Geary, the Charging Party, and all other similarly situated non-members. And I don’t know how big that class is within Kent Hospital, but there were other non-member who opted out along with her. All of those people should be entitled to the refunds, too. So this is an issue that will have to litigate through the compliance process when the case gets back to the regional office.
And I would add we may not be there yet because the union, of course, has the opportunity to appeal to a U.S. Court of Appeals if they choose to do so. So I do not know yet whether the union is going to appeal or not. If they appeal, well, it’ll take even longer to get those refunds. And if they don’t appeal, then we’ll be back in the regional office in Boston trying to figure out exactly what those backpay amounts are and how many other similarly situated people there are.
Rod Sullivan: And it goes back to the D.C. Circuit Court of Appeals?
Glenn Taubman: Well, they can choose. The way the National Labor Relations Board -- National Labor Relations Act operates, if you are an aggrieved party of an order of the Board, you can either appeal to the D.C. Circuit, or you can appeal to the Circuit where the case arose, which in this case would be the First Circuit, since it came out of the Boston Region and Rhode Island. So that’s up to the union at this point.
Rod Sullivan: All right. Thank you.
Wesley Hodges: Thank you, caller. Now for our second caller.
Caller 2: Glenn, I’ve got two questions. The first one is probably complicated, but does it matter, if an employee wants to revoke a dues deduction authorization, does it matter whether they’re in a right-to-work state or not? That’s the first question. And the second question is have any complaints been issued since the GC issued that new memo?
Glenn Taubman: First question is, from our point of view, from my point of view, it shouldn’t matter whether they’re in a right-to-work state or not, as far as revocations. The first thing they look at is what did the employee actually sign, and they’ll look at this. And this is an area of continuing litigation. It does get complicated. There’s an argument that, in right-to-work states, the employee’s agreement to pay is, quote, "voluntary" because he wasn’t under a compulsory dues clause. But I guess the way I look at it, it shouldn’t really matter. The employee should have the same basic rights to get out. I’m not sure if I’m answering your question, number one, but that’s my basic reaction to that.
And your second question was complaints. Yes, actually, we have seen tangible results from General Counsel Robb’s memo. Just recently in Portland, Oregon, the region there issued a complaint against the Unite Here Union, demanding that they provide upfront financial information to employees, not say choose whether you want to be a Beck objector or a non-member and then we’ll tell you what the amounts are and what the financial disclosure is. The General Counsel is now adopting our position that the unions should have to tell you upfront, first, what the chargeable versus non-chargeable allocations are and give you the financial disclosure upfront before you have to make that election.
So we are seeing tangible results, and I think we’re expecting some more complaints to come out of the regions now that this great memo has been issued. Because, as I said, this memo was actually issued in response to a lot of our litigation, and we have cases in the pipeline that will cover a lot of this.
Wesley Hodges: Here’s our next caller.
Caller 3: Glenn, thanks for the presentation. I don’t want to look a gift horse in the mouth, but this seems like an issue that is going to swing back and forth with the composition of the Board and the GC every time there’s a change in the White House. Is there a reason why that’s incorrect on this particular issue?
Glenn Taubman: That’s a great observation, and all of us in the labor law vineyards know that there’s -- they call it policy oscillation and all kinds of decisions swing back and forth. And it seems like of recent years, especially with the Obama Board, the swings have been a little bit more extreme than in the past. But I would say this. This issue of whether a non-member can be forced to pay for political activity is not one that should be subject to policy oscillation. This is very clear from the Supreme Court’s Railway Labor Act cases and from Beck, which itself said, "We’re going to follow the Railway Labor Act cases." So I don’t think this is the kind of policy that was entrusted to the Board to swing back and forth on.
I think at the end of the day, when the appropriate U.S. Court of Appeals, and maybe even the Supreme Court, get to decide this issue head on, they’re going to say, once and for all, as a matter of statutory law, if not constitutional policy or overtones, the only result is that non-members can never be forced to pay for this kind of political activity. So I hope that answers the question. I’m always the eternal optimist, and I think that when courts finally get to decide this issue they’ll say that it’s not subject to policy oscillation. There’s one way to interpret this statute, and that is non-members cannot be forced to fund politics.
Caller 3: You did answer the question. If you have one follow-up perhaps, and that is do you think it will matter whether it’s the D.C. Circuit or the First in terms of how this ends up?
Glenn Taubman: I actually don’t. I think this is all pretty clear, at least it is to me. I’ve been doing this for a long time, so it all seems clear to me, anyway. But I really don’t think it will matter. It remains to be seen whether they union is going to take the decision or whether they’re going to appeal. But I certainly feel comfortable defending this decision no matter what circuit I’m in. I’ve done a lot in the D.C. Circuit, and I’m happy to be there. But we can do it in the First Circuit, too.
Wesley Hodges: It looks like we do have another question from the audience. Here is our next caller.
Charlie Kaplan: Good afternoon, Glenn. It’s Charlie Kaplan from Sills Cummis in New York. Congratulations on your work in this case. One thing I was wondering is, as a practical matter, even after some of the things General Counsel Robb and his team have done, I found a lot of resistance at the regional level to these kinds of charges. And I was wondering what your experience has been in that regard and ways you think that we might be able to change that? By the way, this is not something I only find in the area in Beck issues, but in a lot of issues where the regions really are unhappy with the General Counsel and sort of try to do their own thing, notwithstanding what the General Counsel wants and also what the law provides.
Glenn Taubman: Right. Fantastic question. You know, when I talked at the beginning about the Board being resistant, especially in the Obama years, to Beck claims I didn’t get into the regional level resistance. And you’re 100 percent right. We have found through the decades, literally -- we’ve found that regions are often resistant to these claims. And the few claims that we’ve been able to get to the Board, we’ve always been sort of amazed that we actually got through a region. We got a complaint issued and we were able to bring these cases forward. So yes, there has been a lot of resistance in the various regions around the country. General Counsel Robb and his team are doing a fantastic job in trying to rein in some of this activity in the regions, and we hope that continues. And all we can do is keep on pushing.
You know, I sometimes liken this to a big, huge rock, and we’re just a few people with a sledge hammer bashing the rock. And I think that we just have to continue to try to enforce these rights while we have a good Board and a good General Counsel. And if the regions are resistant, then we’re going to keep appealing and doing everything we can to break down the resistance. The other side of that coin is they do have a boss, which is the General Counsel. And as I said in response to one of the other callers, we’ve already seen a complaint issued, just within days of General Counsel Robb’s memo. We had a complaint issued over inadequate union financial disclosure. I think we can anticipate more of those coming out of the region, given how many cases we already have in the pipeline.
So the regions may be resistant, but at the end of the day, they also have to answer to their boss. But it’s a great question. I know we all face it. I do a lot of work with employees trying to intervene into cases related to decertifications and withdrawal petitions. And we see a lot of resistance there from regions. But General Counsel Robb wrote a great memo about six months ago saying that employees should be allowed to intervene into these kinds of cases. So we’re seeing some changes. We’re fighting the fight, and we’re doing the best we can against this big rock.
Wesley Hodges: Thank you, caller. We do have another question. Let’s go ahead and move to our next caller.
Bob Fitzpatrick: Hi. This is Bob Fitzpatrick in D.C. I’m just curious as to whether there’s a way to incentivize the bar to take these cases, and I guess it’s a two part question. Can Board charges be brought kind of as a collective class matter, and can counsel representing such a collective class matter have a representation agreement where they get a percentage of the fund at the end of the day?
Glenn Taubman: That’s an interesting question. In a lot of these cases, there’s not huge amounts of money at stake for any individual, so only if you could turn it into some kind of class action will there be a pot there for which regular lawyers would be incentivized. I think that’s one issue. There’s also no attorney’s fees provisions under the National Labor Relations Act, you know. In Section 1983 cases, there is an attorney’s fees provision for prevailing parties. So for example, if attorneys bring Janus enforcement cases for public sector employees, if they win, they’re going to get Section 1988 attorney’s fees. In the National Labor Relations Act, there is no provision for attorney’s fees, so unfortunately, employees litigating these cases are having to pay their own legal fees. Or if they’re lucky, they get somebody like the National Right to Work Foundation to provide free legal aid to help them out.
Some of these Beck cases could be brought in federal court, and I suppose, depending upon how big a class was and so on, there could be room for a regular, private attorney to get some fees. But I think, generally, that’s not going to be a way that there’s going to be enough to incentivize private attorneys. We’ve never really seen it all these years. When Beck came out, we didn’t see it, and I’m not sure that there’s a real way to do it, other than having somebody like the National Right to Work that does it as part of our mission.
Wesley Hodges: Very good. It does look like we do have one more question, and that might be the last for today. Let’s go ahead and turn to our next caller.
Caller 6: Hi. Sorry. I missed some of the discussions, so apologies if this was covered already. But I’d like a comment on what you see as the viability of extending the Janus decision to the private sector through litigation, whether there are some current cases in the pipeline to do that or whether you think that should be attempted going forward.
Glenn Taubman: Thank you. That’s a great question, and I was wondering if I was going to get that question today. And I purposely didn’t really discuss that today because I think it’s sort of a question that could be a teleforum in and of itself. And I just thought it’s probably really out of the scope of what I wanted to talk about today. But it is a fabulous question, and it’s an important question. So the question is could a case like Janus be applied to the National Labor Relations Act. You know, that in Beck itself, the Supreme Court left open the question of whether there was state action under the National Labor Relations Act. There’s a First Circuit case called Lynn Scott that says that there is state action under the National Labor Relations Act.
There’s some really good arguments that can be made that there is state action under the National Labor Relations Act. But by the same token, that’s not a slam dunk. There is litigation, I know, that is challenging unto the Railway Labor Act, the forced dues regime there. It is something to consider. It is certainly the ultimate goal for a lot of us to free all employees from compulsory unionism and compulsory unionism abuse that comes from compelled dues to a private organization. So I think it’s a great question. I think it actually deserves its own teleforum as to how that could be -- how a litigation assault like that could be structured and formulated.
It’s certainly something that many of us who labor in these vineyards think about. And that is probably the next frontier, let us say. But for today, I stuck to just the Beck issue of how do we enforce the current protections that we do have. But great question. Thank you.
Wesley Hodges: Well, thank you so much, caller. Glenn, I turn the mic back to you. Do you have any closing thoughts for us today?
Glenn Taubman: Sure. Thanks a lot, Wesley. I really enjoyed giving the discussion today and answering the questions. Those were all really fantastic questions, so thanks to all the callers. I’m going to end on the note that that last question raised, which is what is the next frontier? We certainly want to enforce the Beck ruling. We intend to do so vigorously. There’s hope that with this Board and this General Counsel we will have a lot of opportunities to expand the Beck enforcement, and we just simply haven’t been able to do that for the last ten years because we had a Board and a Board bureaucracy that was so hostile to any Beck claims.
So that’s one of our focuses is to enforce Beck and make it easier for employees to exercise their rights in a knowing and kindly way. And at the same time, we are looking to the next frontier, which is how do we get rid of all compulsory dues, no matter what statute they’re working under? And that is something that we’re going to continue to be involved in. So we are eternally optimistic about what we do here.
Wesley Hodges: Well, thank you, Glenn. On behalf of the Federalist Society, I’d like to thank you for the benefit of your valuable time and expertise today. We welcome all listener feedback by email at firstname.lastname@example.org. Thank you all for joining us for this call. We are now adjourned.
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