Litigation Update: United Nurses and Allied Professionals v. NLRB

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The U.S. Court of Appeals for the First Circuit (Judges Kayatta, Selya and retired Justice Souter) ruled on September 15 that the National Labor Relations Board was correct as a matter of law in holding that private sector unions may never charge dissenting nonmembers for their lobbying activity. The private sector union in this case, United Nurses & Allied Professionals, lobbied the Vermont and Rhode Island legislatures on a variety of bills, and argued that no Supreme Court case squarely held lobbying to be nonchargeable to nonmembers in the private sector, and that the NLRB erred in its analysis of the Supreme Court’s line of compulsory dues cases when it held lobbying per se nonchargeable. To reach its decision, the First Circuit analyzed the line of Supreme Court cases that stretches from IAM v. Street (1961) to CWA v. Beck (1988) to Lehnert v. Ferris Faculty Association (1991) to Harris v. Quinn (2014) and ultimately to the  decision in Janus v. AFSCME (2018). The First Circuit agreed with the NLRB and the dissenting employee, nurse Jeanette Geary, that Supreme Court law taken as a whole compelled a finding that private sector unions are banned from ever charging nonmembers for lobbying activities. Jeannette Geary’s lawyer, Glenn Taubman of the National Right to Work Legal Defense Foundation, argued the case and will present an overview of the case and discuss its ramifications for unions and employees in the private sector.

Mr. Taubman will also discuss the significant procedural twists and turns this case took before reaching the First Circuit, as it was the subject of two mandamus petitions in the D.C. Circuit, one challenging the power of President Obama’s NLRB recess appointees to act in the years before Noel Canning was decided, and a second one challenging the NLRB’s inordinate delay in deciding the case once a valid complement of Board members was confirmed by the Senate.  

Featuring: 

Glenn Taubman, Staff Attorney, The National Right to Work Legal Defense and Education Foundation 

 

 

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Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

Dean Reuter:  Welcome to The Federalist Society's Practice Group Teleforum Conference Call as today, October 2, 2020, we provide a litigation update on United Nurses and Allied Professionals v. NLRB. I'm Dean Reuter, Vice President, General Counsel, Director of Practice Groups at The Federalist Society.

 

      Please note that all expressions of opinion are those of the expert on today's call. Also, this call is being recorded and will likely be transcribed for use on The Federalist Society's website.

 

      We're very pleased to welcome return guest, Glenn Taubman. He's a staff attorney at The National Right to Work Legal Defense and Education Foundation. He's been involved in this case for quite some time. We were talking in our little pre-call. Had some fascinating, I think, procedural twists and turns. He's going to give his opening remarks for 15 or 20 minutes, or so, but as always, we'll be looking to you for your questions. So please have those in mind for when we get to that portion of the program.

 

      With that, Glenn Taubman, the floor is yours.

 

Glenn Taubman:  Thank you Dean and thank you to The Federalist Society for the opportunity to discuss this case. I will point out that the union involved just filed an en banc petition with the full First Circuit. So this 10-year-old case seems destined to live on a while longer.

 

      First, I want to give an overview of the issues in the case. Second, I will briefly talk about some of the procedural oddities in this decade long case, including two mandamus petitions that were filed. And third, I'll cover the NLRB's and the First Circuit's decisions and what they mean for employees and the development of the law under the National Labor Relations Act.

 

      First, the overview. Jeanette Geary was a nurse employed by Kent Hospital, a private sector hospital in Rhode Island. She worked within a bargaining unit represented by the United Nurses and Allied Professionals Union, a small union which also represents hospital employees in Vermont and Connecticut. Geary, and other non-members, were acquired by the collective bargaining agreement to pay dues or fees to the union to keep their jobs at Kent Hospital.

 

      In 2009, Ms. Geary and other employees invoked their rights under the Supreme Court's decision in Communications Workers v. Beck, which held that objecting non-members can only be required to pay for union expenses germane to collective bargaining, contract administration, and grievance adjustment, and not for political and ideological activities.

 

      In response to these objections, the union gave these non-members financial disclosure information that did not include an independent auditor's verification. That financial disclosure did show that the objecting non-members were being required to subsidize the union's lobbying on seven pending bills: four in the Rhode Island legislature and three in the Vermont legislature. The legislation concerned everything from hospital funding, to hospital mergers, to limits on overtime, to nurse licensing.

 

      In November 2009, Ms. Geary filed an unfair labor practice charge against the union raising two major allegations: that the union committed an unfair labor practice by failing to provide an auditor's verification letter, and by charging objecting non-members for lobbying expenses in state legislatures.

 

      The NLRB general counsel issued a formal complaint alleging that the union violated the NLRA in both respects. And that complaint framed the two issues that ultimately went to the Board and the First Circuit. First, whether non-members under the NLRA can ever be required to pay for a union's lobbying activities. And whether the union is required to give non-members a full auditor's verification letter.

 

      The case was tried before an administrative law judge in February 2011. The ALJ recommended dismissal of the allegation concerning the failure to provide the auditor's verification letter because he held the Board had not yet ruled on that issue. The ALJ found that the union violated the NLRA by charging for lobbying activities on four of the bills and he reasoned that those bills were not germane to the union's collective bargaining obligations. However, he ruled that three other bills, including one in Vermont, were germane and chargeable to dues objectors in Rhode Island. These related to hospital funding and mergers and the ALJ held that non-members could be required to pay for those lobbying efforts.

 

      The parties filed exceptions and cross-exceptions to the Board from all of these rulings and teed the case up for appellate review. But this is where the case began to have several procedural oddities. In addition to filing exceptions from the ALJ's decision, Ms. Geary moved to disqualify the Board members whom President Obama had given recess appointments when the U.S. Senate did not actually appear to be in recess.

 

      In December 2012, the Board denied the motion to disqualify the recess appointees and issued a 3-1 decision on the merits largely adopting the union's position. On the merits, the recess appointee Board declined to follow the Supreme Court's Railway Labor Act and public sector cases on compulsory fees, such as Machinists v. Street, and Communications Workers v. Beck, and the Hudson decision. The cases, in the majority reasoned, implicate state action and are therefore subject to constitutional scrutiny while NLRA compulsory union provisions do not involve state action and thus, is subject only to "the less stringent duty of fair representation."

 

      Applying this less stringent standard, the recess appointed majority held that lobbying expenses are chargeable to objectors to the extent they are germane to collective bargaining, contract administration, or grievance adjustment, even if they do not concern the objector's bargaining unit, itself. The majority proposed a broad rebuttable presumption of germaneness standard. And they said that, for example, even legislation such as minimum wage legislation would be chargeable to objecting non-members.

 

      In dissent, member Hayes explained that this analysis ignored the Supreme Court decision in Beck, that Congress intended that Section 211 of the Railway Labor Act is the statutory equivalent of the National Labor Relations Act, Section 83. And that the law developed in the Supreme Court's RLA and public sector decisions was relevant to the interpretation of the NLRA, even absent the element of state action. Member Hayes also pointed out that the Board's permissive standard of charging non-members for lobbying was explicitly rejected by the D.C. Circuit in Miller v. Airline Pilots, a parallel case under the RLA.

 

      Now, the Recess Appointment Board that decided the case initially retained jurisdiction over the case and invited interested parties to file briefs regarding how the Board should define and apply its new broad presumption of germaneness standard for lobbying activities. In order to prevent this Recess Appointee Board from continuing to decide the case and refine its less stringent chargeability standard, Ms. Geary filed a petition for a writ of mandamus or prohibition, asking the U.S. Court of Appeals for the D.C. Circuit to order the Board to cease processing the case until it had a valid quorum of members. Her petition relied on the D.C. Circuit's holding in Noel Canning that President Obama's recess appointments were unconstitutional. The D.C. Circuit ordered full briefing and oral argument on her mandamus petition, but before the arguments could be held, the Senate confirmed new NLRB nominees and the mandamus petition became moot.

 

      So once a valid Board was confirmed and seated, Ms. Geary filed a motion asking for the new valid Board to vacate the prior ruling as void in light of three federal courts of appeals rulings that the recess appointments were constitutionally invalid. The Board took no further action and ultimately, as we all know, in June 2014, the U.S. Supreme Court unanimously affirmed the D.C. Circuit's judgment that the Obama recess appointments were unconstitutional.

 

      Ms. Geary then filed a final motion asking the Board to vacate the prior illegitimate decision in its entirety and rehear the case anew. At that point, five years passed, and the valid Board members still had not decided the case. In January 2019, Ms. Geary filed a second mandamus petition in the U.S. Court of Appeals for the D.C. Circuit, this time challenging the Board's unreasonable delay and asking the court to order the Board to issue a judicially reviewable decision within 45 days. The Court ordered the Board to respond to the mandamus petition, but in lieu of a response, the Board quickly decided the case on the merits, thus mooting the second mandamus petition.

     

      So all of this procedural wrangling over recess appointments and then five years of undue delay finally brings us back to the current case. In March 2019, the properly constituted Board granted Ms. Geary's motion to entirely vacate the previous decision of the recess appointee Board. On the merits, the Board concluded, by a 3-1 vote, that relevant Supreme Court and lower court precedent compels—that was their word—the Supreme Court precedent compels holding no lobbying costs are chargeable because that activity is not part of the union's statutory duties as the objector's exclusive bargaining agent under the National Labor Relations Board. The Board found that the NLRA and the duty of fair representation flatly prohibit charging non-member objectives for any expenses incurred for lobbying activities. This holding is important because the Board declared all lobbying non-chargeable, not based on Board precedent, but rather exclusively on its reading of U.S. Supreme Court cases in a variety of legal context, including the public sector and the Railway Labor Act.

 

      Member McFerran, recently rejoined the Board, dissented. Arguing that the Board was not compelled to follow the Supreme Court's public sector and Railway Labor Act precedents and must consider each challenged lobbying expenditure individually. And ask whether, in the particular circumstances of that lobbying effort, the union has established that the lobbying was germane to collective bargaining, contract administration, or a grievance adjustment. Member McFerran would have found that two of the union's seven challenged lobbying efforts, dealing with state funding of hospitals, met that test, even though Ms. Geary's bargaining unit was Rhode Island and one of the lobbying efforts was in Vermont.

 

      The union filed a petition for review with the U.S. Court of Appeal for the First Circuit and the Board moved to enforce its decision. Ms. Geary intervened in that litigation. And that brings us to the decision that was just issued a few weeks ago by the First Circuit. The three-judge panel hearing the appeal consisted of retired Supreme Court Justice, David Souter, who often sits with the First Circuit, and Circuit judges William Kayatta, appointed by President Obama, and Senior Circuit Judge Bruce Selya, appointed by President Reagan. On September 15th, that panel unanimously affirmed the Board majority in an opinion by Judge Kayatta.

 

      First, the panel determined that it owed no deference to the Board in deciding this appeal, since the Board was interpreting Supreme Court law and not Board law when it held that it was compelled to hold all lobbying non-chargeable. As a result, the panel decided the lobbying issue de novo. The Court's application of this de novo standard of review is very important for the reasons I will discuss in a moment.

 

      After establishing the standard of review as de novo, the panel next surveyed the Supreme Court cases from Machinists v. Street, to CWA v. Beck, and particularly to Leonard v. Ferris Faculty Association, a public sector case holding that no lobbying was chargeable in the public sector, with only a narrow exception for lobbying directly related to securing funding for an already negotiated contract with a government employer.

 

      The panel recognized that Leonard was a public sector case and that it was overruled by the recent Janice decision, which held all compelled fees, even direct negotiation fees, to be non-chargeable in the public sector. Nevertheless, the panel employed Leonard's analysis in conjunction with Street and other Supreme Court cases to hold all lobbying non-chargeable to objecting non-members as a matter of law. Partially because such activity is clearly political activity. And partially because the employer with whom this union bargains under the National Labor Relations Act is a private entity, not a governmental body.

 

      The union argued that at least some lobbying was germane to workplace conditions. And the panel recognized that, in theory, some specific union lobbying of a state legislature could possibly be germane. However, the panel also held that such instances would be so rare, if they could occur at all, that the NLRB was correct as a matter of law in establishing a bright line that no lobbying is chargeable.

 

      For a moment, I want to return to the procedural oddities that I discussed earlier, namely the mandamus petitions and the extraordinary length of time it took for this case to wind its way through the NLRB and the court system. Because those litigation delays and oddities are a common factor in, both, this case and the recent Janice decision. In part, the First Circuit established a clear line, as a matter of law, that lobbying is never chargeable under the National Labor Relations Act because it recognized that dissenting employees lack the resources to press their objections and litigate cases like this, which often involve important free speech principles, but relatively small amounts of money from each individual employee.

 

      This important point tracks Janice and Justice Black's dissenting opinion in Machinists v. Street, both of which recognize the extraordinary litigation burden that falls on non-member employees when they seek to police union finances and challenge the amount of an agency fee. As Justice Black said, while such litigation may be lucrative for lawyers and accountants, it does little to protect the rights of dissenting workers who cannot necessarily afford drawn out, and expensive, and time consuming litigation to establish the proper chargeable amount of their compelled fees.

 

      And as the First Circuit recognized, in channeling Janice and Justice Black in Street, "there is thus a certain practicality to drawing a brighter line, as Leonard suggests and as the Board did here." In other words, the courts recognize that, if you look at these cases from the point of view of the individual employee, it is burdensome to expect an employee, year after year after year, to wade through unions financial disclosures to identify non-chargeable lobbying activities and then to litigate to challenge those activities year after year. A more proper allocation of the burden is simply to declare such political type activity non-chargeable as a matter of law.

 

      So finally, I want to conclude my remarks with what I believe is a key element of this decision, which is the standard of review employed by the First Circuit. As noted before, the First Circuit reviewed this case de novo and determined, as a matter of law for itself, not to affirm the Board but, but for itself, it determined that lobbying is never chargeable under the National Labor Relations Act. This is important because it prevents a future NLRB from trying to change this law and redefine lobbying as a chargeable activity for non-members as the Obama recess appointee Board did, back in 2012.

 

      As many labor lawyers know, there is a lot of policy oscillation with the NLRB and each new Board seems to frequently overturn precedent. The court's de novo decision and clear statement of First Circuit law should now prevent such oscillation on the lobbying issue. Especially since the First Circuit has now lined up squarely behind the D.C. Circuit's Miller decision in holding all lobbying non-chargeable.

 

      So the hope for this particular employee is that this issue has finally been settled, although as I noted at the outset, the union just filed an en banc petition so their maybe further developments in this case. And with that, I think I will turn this back over to Dean and I'll stop talking for a few minute and take whatever questions people may have.

 

Dean Reuter:  Thank you very much, Glenn. I've got a handful of questions myself, but we've got a few people in line, only one of whom has a question.

 

Caller 1:  Thanks very much. Fascinating issues. Fascinating discussion. Thank you very much for bringing this to us. Just sort of a procedural question, I've got a background in tax and I know that the IRS sometimes practices whatever first who has nonacquiescence, whereby a decision adverse to their position in a particular circuit, they'll concede that for that circuit, but not necessarily for others. Just curious if that's a possible tactic or outcome that might occur in this instance. I'm not even sure if that's an authority the Board has.

 

Glenn Taubman:  You are raising a fantastic question. Thank you because I feel like I've spent a lot of my career fighting Board nonacquiescence. And that is, in fact, the term that is used. Because the Board has traditionally taken the position that it’s a national entity and that it is not bound by any particular circuit's law.

 

      So it is conceivable that a future NLRB could take that position and say that, you know, with all due respect to the First Circuit, we're not bound by this. We're a national body and until the Supreme Court tells us exactly, we're not going to follow. So yes, that is somewhat of a possibility --

 

Dean Reuter:  Glenn, Glenn, it's Dean. Sorry to interrupt but I just want to clarify. The NLRB would assert its not going to comply with the First Circuit law outside the First Circuit, is that correct?

 

Glenn Taubman:  Right. I mean, that's pretty much correct. There was a line of cases in the D.C. Circuit. I don't want to get our listeners too far into the weeds. But there was a line of cases in the D.C. Circuit, for example, where the NLRB in years back would issue bargaining orders requiring companies to bargain with unions when there hadn't been enough of a showing that such a drastic remedy was required. And they kept going back. The cases kept being brought back to the D.C. Circuit. And the D.C. Circuit kept shooting them down. And finally, the D.C. Circuit, and others, were getting angry at the Board and saying, we don't like your nonacquiescence. So these things can take a lot of different forms. But generally, they would acquiesce within the circuit with which the case was in. But they wouldn't acquiesce elsewhere.

 

      My point, just to sum up on this, my point here is that the First Circuit was very clear that, as a matter of law, that's how they interpret the National Labor Relations Act. And they lined up squarely behind the D.C. Circuit, which had, in the Miller case, said that the Railway Labor Act would be decided the same way. That these were parallel statutes. Parallel principles apply. And in a wonderful opinion by Judge Silbermann in Miller, he said that lobbying was purely political activity and it could not be charged. So I guess the way I see it is, a future Board could try to nonacquiesce, but I think that's becoming increasingly difficult given this case and what's out there. Thank you, though.

 

Dean Reuter:  Thanks, Glenn. Go ahead, caller, if you had a follow up.

 

Caller 1:  Well just curious if, you know, and I apologize for my ignorance of the finer points of the NLRB, the NLRA, what its status is as an independent agency, potentially for example, as opposed to, you know, a -- I don't know how you would draw that station between treasury, which is obviously wholly subordinate to treasurer -- IRS which is wholly subordinate to treasury. Just curious if there was sort of a distinction with a difference that might -- deeper potentially, you know, administrative or constitutional issue that might drive a resolution to that type of question. I realize that could go a little too far afield of what you want to talk about today.

 

Glenn Taubman:  Well, yeah. I mean, it probably is a little bit afield. But the NLRB, at least on paper, is an independent federal agency. Its governing statute says that no more than three members of any one party can be on. So you're always, in theory, having some three to two shifting majority between Democrat nominees and Republican nominees. So I'm not sure about the possible constitutional challenges or ramifications of nonacquiescence. I think most circuits, eventually, will get mad at the NLRB if there's too much nonacquiescence. But that's, I suppose, what the Supreme Court is ultimately for, is to settle these sorts of disputes so there is no more nonacquiescence.

 

Caller 1:  [Inaudible 00:25:53] circuit split.

 

Dean Reuter:  Glenn, this is Dean. Since we've gone this far afield, let me ask you, if you have any thoughts about how the doctrine of nonacquiescence sort of squares, or whether it does, squares with the idea of nationwide injunctions. It's interesting to me that a district court, vis-à-vis a government agency, will claim to set a nationwide standard. And then, here, we have a circuit court, whether it's with the NLRB or the EEOC or some other agency, unable to set a nationwide standard.

 

Glenn Taubman:  Right. I think there are some interesting questions and parallels in all of this. It is a little bit farther afield than I had really thought out going. But it does raise, though, very interesting questions.

 

      The NLRB, with some justification, says look, we are a nationwide, federal, independent agency and despite the fact that a case could end up in the Fifth Circuit or the Ninth Circuit or wherever, and we don't always get to choose where cases end up because the losing party has some discretion has to where they bring the appeal. Because the statute says, if you're losing party before the NLRB, you can bring your appeal to the D.C. Circuit, or where the case arose. So the NLRB says, with some justification, we don't control which circuit, necessarily, hears these appeals. So we can't tailor our decisions to any particular circuit. We have to tailor our decisions to federal labor law, as we see it, and ultimately the Supreme Court will decide who's right or wrong. But it is an interesting irony, as Dean points out, about one district court judge can try to enjoin for the entire country. And here's a circuit court of appeals that a future NLRB could say, well that was all fine and good but we're not following.

 

      I would hope that doesn't happen. And as I said, the fact that we're seeing some circuits line up, now, favorably on the position that lobbying is really political activity and is not chargeable, hopefully that makes a future Board think twice.

 

Dean Reuter:  Very good. Maybe we'll return to your main themes here, with our next question. For now, let's check in with our next caller.

 

Caller 2:  Hi. Thank you for your talk Mr. Taubman. I was wondering if you could answer whether or not germaneness is the proper standard for determining whether a union can charge non-members under the NLRA. Because there's some discussion that germaneness is too indeterminate, it's amorphous, nothing can be related, everything can be related. And that a much better standard is the statutory duty standard, where you can only charge non-members for duties that unions are required to take by the NLRA.

 

Glenn Taubman:  Right. That's a very good question. Because I have always taken the position, in my litigation, and many others take that position, that when you create this germaneness standard, what does germane mean? Germaneness is in the eye of the beholder, right. So a particular union will think that almost anything they're lobbying on, or any politics they do, even electoral politics, is germane to the union's role as a collective bargaining agent.

 

      You know, in Street, Justice Frankfurter said, unions should be able to charge for electoral politics, for directly trying to elect candidates, because they'll achieve more at the bargaining table if they have a favorable political candidate elected than they will at the bargaining table, itself. So germaneness, the concept of germaneness, is a moving target. I think in the oral argument, in the First Circuit, Judge Selya, in response to the idea of germaneness, if I remember correctly, said something like, you could drive a truck through that standard. And that's also something that Judge Silberman said in Miller, that germaneness is just -- it's not a standard at all.

 

      And the Supreme Court has often recognized that itself has problems drawing lines. That was -- and again, that's part of why they decided Janice the way they did. And why they decided so many of these cases. And why Justice Black was right in his dissent in Street, if the listeners want to go take a look at that. Because they said, if we have this squishy standard of germaneness, all we're doing is inviting litigation. And it's very difficult to draw a proper line. It just is. Because what's germane to the union is not going to be germane to Nurse Jeanette Geary, who might want lobbying for more funding for police rather than lobbying for funding of hospitals. So germaneness is in the eye of the beholder.

 

      Now the questioner also mentioned, what he called, the statutory duties test. And that is something that Justice Scalia, joined by Justice Souter in Leonard, adopted as the proper test. They said, if the union has a statutory duty to do this function, then they should be able to charge for it. But if they don't have a statutory duty, they should not be able to charge for it. In other words, in the private sector, the union has a statutory duty to bargain with the employer, in this case a hospital, but there's nothing in the NLRA that creates a statutory duty for the union to go lobby a state legislature.

 

      So Justice Scalia, in Leonard, and Justice Souter, their view was, just limit chargeability to what the union is statutorily obligated to do. And I think that's how the Board read the cases. And that's why they came out where they did. That a clear, clean line, that lobbying is not part of an NLRA union's statutory duty. Their duty is to bargain with an employer over wages and working conditions and to administer the ultimate contract. Their duty is not to go run to the Rhode Island legislature to lobby over various issues of public policy. Anyway, I think that's my answer for that caller.

 

Dean Reuter:  While we're waiting to see if somebody else rings in, let me ask you if there are other areas of law, Glenn, where bright line tests have been applied by courts to avoid the application of a burden to one side in a litigation equation. You mentioned that's sort of what's at play here. I'm wondering if there are other areas of law where that happens.

 

Glenn Taubman:  Well, you know, I'm obviously in my own labor law world, so it's hard for me to speak outside of that world. But, you know, I think about -- there was a case called Southworth that the Supreme Court decided quite a while back. I think Justice Kennedy might have written the opinion. And it was about student fees, compulsory student campus fees. And there was discussion there about how difficult it is to draw the line and where does the burden fall. And all I could say about this question of drawing clear lines to lessen the burden is that enough courts have now recognized, again, though Janice and through Justice Black in Street, and I hate to keep going back to him, but from the day I started doing this, I found his opinion to be really the best of all of them in saying, look we have to draw clear lines. We can't just have moving targets here. Because the litigation burden, itself, becomes a First Amendment injury. If you're going to say to somebody, oh yeah, sure, you have First Amendment rights. But the only way you're going to be able to secure them is going through decade-long burdensome expensive litigation to help figure out exactly where this line is. That is, itself, a burden on First Amendment rights.

 

      I'm sure some of my colleagues, who are law professors, are probably sitting there going, oh there's a lot of examples that could answer Dean's question. And I can't, off the top of my head, come up with others. But I know that there has been discussion among the cases on compulsory dues and student fees about lessening the burden on objecting non-members.

 

Dean Reuter:  Great. We do have a couple more questions, a couple more callers with questions.

 

Caller 3:  Yes. I enjoyed the talk. And I was just curious, now that you've won on the lobbying issue, what other big issues do you see coming up in the context before the NLRB in the future?

 

Glenn Taubman:  Well, you know, after Janice, you know, Janice was really a sort of an Earth-shattering decision. One that, I know, a lot of my colleagues and I have long been fighting for. But Janice really is a new way to look at forced fees and charging non-members for forced dues. And I think there are going to be questions going forward as to whether other statutes, such as the Railway Labor Act, or the National Labor Relations Act, should have any forced dues at all.

 

      I note that there is a Railway Labor Act case issued by, I think it was the Third Circuit just in the last couple of weeks, on this issue of whether forced fees under the Railway Labor Act were constitutional. And so I would say that is one of the big areas going forward, is whether anything can actually be charged. And what is the status of the National Labor Relations Act. And are there constitutional questions under the National Labor Relations Act. Of course, that gets you into state action and whatever.

 

      One other thing that comes to mind, to answer the caller's question, is besides lobbying, if you start to break down things that are or are not chargeable, union organizing has always been a contentious area. Because in Ellis v. Brock, the Supreme Court held that organizing was not chargeable under the Railway Labor Act. But there's a contrary Ninth Circuit decision under the National Labor Relations Act, the USCW case that indicated that lobby -- sorry, that organizing could be chargeable. So I would say organizing is another area that might be ripe for more litigation going forward. I hope that answers the caller's question.

 

Caller 3:  Yes, it did. Thank you.

 

Dean Reuter:  Got one more question and our lines, again, are open. If you would like to ask a question, push the star button, then the pound button. We've still got some time left. For now, let's check in with caller area code 540. Go ahead caller.

 

Matt Muggeridge:  Hi. This is Matt Muggeridge calling from Fredericksburg, Virginia. So greetings to Glenn Taubman. And just for maybe the listeners, this -- you talked about the burden on the plaintiffs in this type of case. So I think this charge was originally filed maybe 10 or 11 years ago, is that right?

 

Glenn Taubman:  That's correct. 2009 was the initiation of this litigation. So here we are, 11 years later, litigating for a few nurses over a relatively small amount of money, but for a huge constitutional principle.

 

Matt Muggeridge:  So I just -- I mean, it's such an eloquent testimony to the need for litigation like this to eliminate that completely unconscionable burden on individuals who, you know, who won't be working there, who will be retired, who will have suffered injustice for years and years. And I just cannot applaud enough the patience and determination of the litigants in this particular case. So it's not really a question. It's just that the observation that the burden on individuals in NLRB cases, in our system, contesting elections or contesting chargeability, or whatever it is, it's the old phrase of justice delayed is justice denied. But this is a fantastic outcome. It took 11 years and two mandamuses and maybe there's more litigation to come. So applaud -- I applaud the litigants in this case.

 

Glenn Taubman:  Well, thank you. I actually would comment that, having been here at The National Right to Work for many decades, more than I care to count, I have seen that many of these chargeability cases take an extraordinarily long time. And I would say that's because unions put a lot of resources into fighting the cases. Courts view them, often, as political hot potatoes that they would rather just put off to the side because they do raise very thorny statutory and constitutional issues. And I, myself, have been involved in cases, other agency fee-payor cases that have stretched on through the Board and the courts for over a decade. And in some cases, approaching two decades.

 

      So, and this is for one case, for one group of employees, over the chargeability of dues for one year. So yes, there is a huge litigation burden that comes with trying to protect your First Amendment and free speech rights. And this was clearly picked up in Janice. Justice Alito has an entire section on the litigation burden. And for the final time, I'm going to tell your listeners, if you wanna read the Tour de Force on this issue of litigation burden, it's Justice Black's dissent in Street, which goes back to -- I forget when Street was decided. Maybe 1960. And he said, telling people to litigate over the chargeability over the division of their dues between what's legally chargeable and what's not, is a boom for lawyers and accountants. But it's not going to do a darn thing to protect their rights. And he was 100 percent prescient when he said that. And it's been born out over the decades. So thank you, caller.

 

Matt Muggeridge:  Thank you.

 

Dean Reuter:  And I can't imagine, Glenn, that litigation in the interim has gotten any easier. So it's probably a problem that's compounded. On this same topic, you're not quite done yet. How surprised were you at the request for en banc? And I know it's a recent request so you might not have really thought much about it. But how surprised were you at the en banc request? And then, especially with a 3-0 decision, including a retired Supreme Court Justice. And then a factual question. How many judges do you know on that circuit? And do they start with a three-nothing deficit, in terms of the total count?

 

Glenn Taubman:  Well, that's an interesting question. I can't say that I'm shocked, truthfully. Because as I noted to the prior caller, unions devote a lot of resources to fighting these cases. And this union has been fairly tenacious, as many of them are. So I can't say that I'm really shocked. I do sort of see the irony that the union is arguing that the First Circuit misapplied the Leonard decision when Justice Souter was on Leonard and signed off on Justice Scalia's concurrence. So I'm willing to assume that Justice Souter, when he signed off on the opinion in this case, knew very well what he had signed off on in Leonard, and in fact we discussed this quite a bit at the oral argument. Leonard was front and center at the oral argument. And I'm confident Justice Souter remembered the position that he took in Leonard.

 

      Now, on the mechanics of it, as I understand the federal rules of appellate procedure and the First Circuit rules, only active judges get to vote on whether a case will go en banc. So that means that Justice Souter, theoretically, is not voting. And also Judge Selya, who's a senior appointee by President Reagan, he presumably won't be voting either. So only Judge Kayatta, the author of the opinion, will presumably be voting. And we'll see. You know, I once argued a case in the Ninth Circuit en banc, so maybe I'll get to say that I got to argue two en bancs in totally different circuits. I don't know. At this point, your guess is as good as mine.

 

Dean Reuter:  Looks like we've got another audience member question, so.

 

Caller 4:  Yeah. Just turning to the possible application of this outside of the labor law area. And I do realize this is not necessarily your expertise, but similar situations where people in larger contexts are required to contribute to causes that they may or may not agree with. And one example that leaps to my mind is student activity fees often at colleges and universities, some of which are public institutions. And maybe I just haven't kept up with the state of the law. Maybe that's sort of already been resolved. But there does seem to be potential substantial overlap, although with some potentially significant differences. I was just curious if you might have a comment.

 

Glenn Taubman:  No, actually, it's a great question because student activity fees, there has been litigation over it. As I noted, there was the Southworth case that went to the Supreme Court some years ago. But I expect that there could be additional student fee litigation. Because they have the same issues that we do about dividing what is a chargeable expense versus what is a political and ideological expense.

 

      And then, of course, the other area where this comes up is bar dues. I think the Supreme Court did not take cert in some recent bar dues cases, but I know in various states, the same issues are coming up. And so writ broadly, these issues do spill over into other non-labor areas. We look at the bar dues cases. And the bar dues challengers look at our cases. So I hope that answers the question.

 

Caller 4:  Indeed it does. Thanks.

 

Dean Reuter:  Glenn, I think we've had our final question. We've got a few minutes left. Let me give you a chance to express any final thought or wrap up if you'd like.

 

Glenn Taubman:  Thanks, Dean. And thanks again to The Federalist Society for letting me talk about this case. I mean, my only thought is, it would be nice to finally get some resolution on this issue, and maybe we will. Maybe it'll end at the First Circuit and that'll take care of things for a while. Maybe we'll go farther to en banc and/or the Supreme Court. But I see all of these cases because it's just the nature of the work that I do from the employee point of view. And I see the burden on employees who simply don't want to fund political and ideological activities with their dues money. And I would like to see resolution of a lot of these issues so that unions know where they stand, and the employees know where they stand.

 

      I would just point out, in Janice, the unions argued, you know, without forced -- without compulsory fees, the whole thing is going to fall apart and the whole system of labor relations is going to fall apart and so on and so on. But we see two years after Janice that that never happened. Unions continue to bargain. They continue to represent employees. Some people have resigned and revoked and gotten out. But other people chose to be voluntary union members if that's their choice. And the whole system has not fallen apart. So I would say the same thing under the National Labor Relations Act. If employees have freedom to choose, then the whole system won't fall apart. If people want to voluntarily join, they can. And if they want to opt out, they should be able to.

 

      So that's my final thought. It'll be interesting to see what the First Circuit does now with the en banc petition. And we'll try to keep The Federalist Society listeners abreast of what happens going forward.  Thanks a lot.

 

Dean Reuter:  Thank you, Glenn, and we might well check in with you at that point in time for an update. I've been informed that, apparently, our notice of today's call made it to some of our listeners a little bit late, so if you missed the opening remarks, or any portion of the program, it's all been recorded and will be available as The Federalist Society Practice Group podcast in the coming days.

 

      With that, I want to thank Glenn Taubman for joining us and for taking a very square, even-handed approach to this case. I certainly appreciate that. I want to thank the audience, as well, for dialing in and for your thoughtful questions. And a reminder to our audience to check your websites and check The Federalist Society's website and check your emails for upcoming teleforum conference calls. But until the next call, we are adjourned. Thank you very much everyone.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.