The NLRB and the long march from the Beck Decision
By Reed Larson
In 1988, National Right to Work Foundation attorneys convinced the Supreme Court in Communications Workers of America (CWA) v. Beck that American working men and women cannot be forced to fund labor unions' political activities. Twelve years later, what has happened to Beck? Why have so few workers heard about this landmark ruling protecting their right to free speech?
The answer is simple -- the Clinton administration, the National Labor Relations Board (NLRB), and organized labor have orchestrated a campaign of misinformation, intimidation, and obstruction designed to keep workers from knowing about and exercising their Beck rights. During the 2000 election season, unions repaid the Clinton administration and their allies in Congress with record amounts of political cash -- fueling both the Gore-Lieberman ticket's comeback in the polls and the Democrats' pickup of seats in the House and Senate.
In the face of this assault on workers' Beck rights, the National Right to Work Foundation continues to press forward in its campaign to enforce this important ruling. In addition to enforcing Beck through aggressive legal actions, the Foundation is engaged in an intense public information campaign to educate workers about their Beck rights. Through the news media, advertisements, public service announcements, an interactive web site (www.nrtw.org), pamphlets, newsletters, and other public outreach efforts, the Foundation has informed millions of workers that they cannot be forced to pay for Big Labor's political spending spree.
It is important to note that the Supreme Court's Beck precedent is not a panacea. It does, however, highlight the inherent flaws in our nation's labor laws, which are stacked against individual workers. No Supreme Court decision that comes short of ending compulsory unionism will totally protect workers against the abuses now suffered under our national labor policy. This is the Foundation's ultimate goal.
Brief History of Forced Unionism
American labor law is written to benefit one select group -- union officials. Existing federal labor policy was not designed to be even-handed. It is based on the premise that the public interest is best served by collectivizing working people -- by forcibly organizing them into unions. As a result, labor law is written to place the power of government on the side of the union organizer and against the independent citizen.
This system dramatically increases conflict in the workplace. As Robert Bork, former U.S. Solicitor General and appellate court judge, once wrote, "Our labor law, and the ideology that supports and suffuses it, encourages the organization of employees into fighting groups, and lets the wage bargain depend on the outcome of the fight. The rhetoric of union organization and struggle is the rhetoric of war."
Moreover, federal labor law is a complex web of red tape and murky language designed to leave individual workers at the mercy of union officials. It is a system in which union bosses use the force of law to compel workers to accept unwanted "representation" and pay union dues as a condition of employment. Union officials use a huge chunk of those forced union dues to fund political candidates and activities.
Compulsory unionism has been a fact of life for millions of workers in the private sector since 1935, when Congress passed and President Franklin Roosevelt signed the National Labor Relations Act (NLRA) or Wagner Act, named after New York Senator Robert Wagner. Essentially a package of special privileges and immunities, the NLRA is the most significant -- and worst -- labor law in American history. It gives unions the power to force millions of employees working for private-sector businesses into monopoly bargaining contracts. Practically overnight, the NLRA created the political machine that we know today as Big Labor.
In 1947, Congress amended the NLRA when it passed the Taft-Hartley Act. The Act affirmed states' rights to pass Right to Work laws, applied "unfair labor practices" to unions, and forbade pre-hire closed shops, which require workers to join a union in order to get or retain employment. This last provision, however, turned out to be meaningless. Taft-Hartley entrenched forced unionism under the name of "agency fees." The Act allowed unions to force employees to pay for union activities in order to get or keep a job, regardless of union membership. In addition, over the last 40 years, 33 states have granted unions similar privileges over public employees.
The History of Beck
Propped up by federally granted privileges no other private movement in America enjoys, Big Labor is a political machine unmatched in size, power, and influence. Unlike any other political organization, it is able to fund its political agenda with money taken from unwilling citizens–to the tune of over $10 billion annually.
The first major blow to Big Labor's ability to take union dues for politics originated in 1976 when Maryland telephone worker Harry Beck decided to take a stand. Beck demanded that union officials stop taking his hard-earned dollars to support political causes that conflicted with his beliefs. With free legal aid provided by Foundation attorneys, he filed a lawsuit in U.S. District Court against the CWA union for using dues for non-bargaining-related activities, including politics. For twelve years, Beck's case traveled through the federal courts and eventually ended up in the United States Supreme Court.
Despite ferocious opposition by union lawyers, the NLRB, and Reagan administration Solicitor General Charles Fried, the U.S. Supreme Court ruled in Beck's favor on June 30, 1988. It held that the NLRA does not authorize unions to seize from protesting employees dues that are spent on activities other than collective bargaining, grievance adjustment, and contract administration. However, the Court also held that, regardless of union membership, employees could still be compelled to accept and pay for union "representation" even if they did not want it.
Fried's position was surprising for a representative of a conservative administration. In his brief he argued that agency agreements authorized under the Taft-Hartley Act, which require payment of full union dues, did not violate workers' rights as long as union membership was not mandatory. The Supreme Court rightly rejected this argument, and recognized it as a moot distinction to the employee whose paycheck is being raided to fund causes he or she disagrees with. The Court's ruling, written by Justice William Brennan stated that the law does not allow unions "to exact dues equivalent from nonmembers in any amount they please." Rather, it "authorizes the exaction of only those fees and dues necessary to ‘performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.'"
In previous Foundation-won rulings, the High Court prohibited union officials from seizing money for politics from workers not covered under the NLRA. Abood v. Detroit Board of Education, (1977) -- in which a group of teachers successfully sued the Detroit Federation of Teachers to refund the portion of their dues going to political activity -- extended this protection to government-sector employees. Ellis v. Brotherhood of Railway, Airline and Steamship Clerks, (1984) -- from a suit brought by employees of Western Airlines against their union -- extended it to employees who fall under the Railway Labor Act.
CWA v. Beck expanded that protection to the more than 44 million private-sector workers under the NLRA.
When workers find out that they have the right to refrain from paying for politics -- something that they rarely, if ever, learn from union officials or the NLRB -- they may invoke a "Beck objection" by resigning from union membership and paying a reduced amount of dues. But workers often find themselves victims of illegal resignation window periods, which are established to thwart objections. A Beck objector may only be forced to pay a reduced amount directly attributable to collective bargaining, grievance adjustment, and contract administration. Furthermore, before any dues are seized from objecting non-members, the union must provide an independently audited financial disclosure. This requirement flows from Chicago Teachers v. Hudson, (1986), another of the Foundation's Supreme Court victories.
In Beck, a special master appointed by the Court found that the union could only prove that 21 percent of Beck's forced union dues were used for collective bargaining purposes. This allowed Harry Beck and his co-plaintiffs to receive a 79 percent refund on the dues they had paid.
Though it addresses major aspects of Big Labor's power, Beck is by no means a panacea. Unfortunately, even with the Beck ruling, America's workers remain trapped under a federal labor law that forces them to accept and pay for unwanted so-called "representation." However, thanks to Harry Beck's brave stance, workers now have the right not to pay into labor unions' political slush funds. Successfully protecting workers' Beck rights depends on informing workers of their rights and forcing the National Labor Relations Board to enforce fairly the Supreme Court's ruling.
Beck Enforcement and Executive Orders
On April 13, 1992, President George Bush issued Executive Order 12800 requiring federal contractors to inform workers of their Beck rights by posting notices in the workplace. Upon issuing the order in the White House Rose Garden with Harry Beck at his side, Bush stated: "No American, not one, should be compelled to give money to a candidate against his or her will." Unfortunately, when Bush fell to defeat in the 1992 presidential election, so fell his executive order protecting workers' rights.
Within days of taking office in 1993, Bill Clinton rescinded Bush's executive order, thereby directing federal contractors to remove the posters. Clinton's decision was no surprise considering the political cash he received from unions in order to get elected.
In the 1992 election, unions gave the Democrats $39 million in Political Action Committee contributions. In addition, experts estimate that for every PAC dollar given, ten dollars is given in soft money and in-kind support.
In 1992 and subsequent election years, unions dumped hundreds of millions of dollars into the political campaigns of their allies, almost all of it from forced union dues. Unions' investment in Bill Clinton paid off immediately -- they had successfully muted the first governmental attempt to inform workers of their Beck rights. In 1996, a survey showed that 78 percent of union members had still never even heard of the Beck ruling.
The NLRB Refuses to Enforce Beck
Though officially a government adjudicating agency, the NLRB is, in fact, a taxpayer-funded political body heavily biased towards union interests. Throughout the Clinton presidency, the Board has been stacked with former union lawyers hostile to individual workers' claims. Anti-employee forces have always held a strong majority of the five-member board, and the NLRB's General Counsel -- the bureaucracy's most powerful post -- has under Clinton been a former union activist or lawyer. Clinton's latest selection for General Counsel, Leonard Page, is a long-time United Auto Workers union lawyer.
That explains why the NLRB has displayed an extraordinary bias in the processing of complaints related to the seizure of compulsory union dues. When the Board finally acted on Beck cases under intense pressure by Foundation attorneys, it did everything possible administratively to weaken the standards by which Beck would be applied.
In California Saw & Knife Works, Inc., 320 NLRB 224 (1995) -- the first NLRB ruling claiming to implement the Supreme Court's Beck decision of seven years earlier -- the Board decreed that, contrary to the Supreme Court's explicit ruling in the Foundation-won, Chicago Teachers Union v. Hudson decision, workers are entitled only to a union's "self-audit" of its non-bargaining expenditures. This allows a union to define its political expenditures as whatever it says they are, without substantiation of any kind. It also ruled that the International Association of Machinists (IAM), the defendant union in this case, only needed to publish an annual notice in its internal propaganda magazine to comply with the requirement of notifying workers of their Beck rights. The net effect of California Saw was to gut the rights gained under Beck.
Foundation attorneys took these issues to the U.S. Circuit Court of Appeals for the District of Columbia, which found the NLRB's tortured reasoning as "not rational," and declared that private-sector workers have the same right to independently verified audits of union political spending as public-sector workers -- a ruling that the NLRB has already ignored.
The California Saw decision was itself the result of over a decade of NLRB foot-dragging and stonewalling. Foundation attorneys first filed charges in this case on behalf of technician Alan Strang and three other Milwaukee employees in October 1985 (after the Fourth Circuit ruled in Beck's favor). The Strang case and other forced-dues cases languished in the bureaucracy of the NLRB for ten years.
One of the few independent voices on the NLRB, former board member J. Robert Brame, loudly condemned his colleagues for their cavalier treatment of individual employees exercising their rights under Beck. Writing in dissent in the Foundation's recent Dameron Hospital case, Brame forcefully argued that the NLRB in California Saw got it all wrong when it applied a watered-down "duty of fair representation" standard to unions' seizures of forced dues. Under this standard, unions are granted a "wide range of deference" over whatever acts they define as "representation." Instead, argued Brame, the proper standard to be applied to the taking of forced dues is the "strict scrutiny" standard traditionally applied in First Amendment cases. Only a strict standard of enumerated union rights and responsibilities would protect workers against unions' unaccountable use of their dues for politics.
But Bill Clinton's NLRB would have none of this, and NLRB member Brame was a lone voice against the special privileges and "wide range of deference" accorded to union bosses.
Brame, former General Counsel for the Republican Party of Virginia, was not reappointed at the end of his term. He was first nominated and confirmed in 1997, along with three other NLRB board members -- Peter J. Hurtgen, Sarah M. Fox and Wilma B. Liebman. Fox and Liebman are both former union lawyers. Fox had previously worked as legal counsel for the Bricklayers International Union, while Liebman had worked in the same capacity for both the Bricklayers and Allied Craftsmen and the Teamsters. Hurtgen is an employment lawyer, formerly with the firm Morgan, Lewis, & Bockius in Miami. Brame's term expired on August 27, 2000. Along with John C. Truesdale, a 50-year NLRB bureaucrat and current chair, Fox, Liebman, and Hurtgen remain NLRB board members as of this writing. Liebman's activist chief of staff, Dennis Walsh, is slated to finish out Fox's term through a recess appointment by the end of this year.
Courts Attack Board's Union Bias
Numerous federal courts have taken the NLRB to task for its misapplication of the law and its arrogance in its handling of Beck cases. For example, the D.C. Circuit court called "not rational" the NLRB ruling in California Saw, in which the Board adopted a veneer of procedures that appear to protect employee rights, but in reality allow unions to audit their own financial books and records. Ferriso v. NLRB, No. 96-1321, slip. op. at 4 (D.C. Cir. Sept. 23, 1997).
Regarding the agency's outrageous delays in processing cases, the U.S. Court of Appeals for the Second Circuit cited the NLRB for "stand[ing] out as a federal administrative agency which has been rebuked before for what must strike anyone as a cavalier disdain for the hardships it is causing."
NLRB Drags its Feet on Beck
For workers who have had heir Beck rights violated by union officials, getting the NLRB to act on their cases is a task of titanic proportions. In a Wall Street Journal op-ed, I once compared the ordeal that workers must endure to Jarndyce v. Jarndyce, a fictional case in Charles Dickens' novel Bleak House that dragged on for years of convoluted legal maneuvering. When it was finally resolved, no one could remember why it was brought in the first place. In Beck case after Beck case, the NLRB has done Big Labor's bidding by forcing workers to wade through bureaucratic red tape and wait years to have their cases decided.
The NLRB's bias against Beck objectors is well documented. Beginning in 1992, NLRB officials delayed all action on one case, Weissbach v. American Federation of Television and Recording Artists. It was brought by Peter Weissbach, then a Portland, Oregon radio talk show host, against union chiefs at the American Federation of Television and Radio Artists (AFTRA) after they rebuffed his attempts to exercise his legal rights under Beck.
Due to this long delay, in 1998 Foundation attorneys filed petition for a writ of mandamus with the U.S. Court of Appeals for the District of Columbia, pleading for an order that would compel officials at the NLRB to take action on a case completely ignored for nearly seven years. A writ of mandamus -- from the Latin meaning, "we command" -- would compel the recalcitrant federal labor board to issue a decision in this case. A mandamus action is extremely unusual.
The case was one of the oldest of nearly 60 cases in which Foundation-assisted employees tried to reclaim their forced union dues used for politics. In Weissbach, the Court of Appeals ordered the NLRB to decide the case by a certain date. Foundation attorneys reached a settlement with the NLRB in which the federal agency paid more than $10,000 in attorneys' fees as a penalty for its extraordinary delays in performing its statutory duties. Though the attorneys' fee award was a negligible fraction of the Foundation's total cost of forcing the NLRB to act on these cases, it further demonstrates the appellate courts' frustration with an agency it found has acted in a "substantially unjustified" manner. Accordingly, reparations were appropriate under the Equal Access to Justice Act.
In mid 1999, Foundation attorneys obtained internal NLRB documents, released under the Freedom of Information Act (FOIA), that revealed extraordinary bias in NLRB processing of complaints related to the taking of compulsory union dues. In cases pending on the NLRB docket and awaiting decision for up to seven years, the FOIA-acquired documents revealed that six out of the ten longest pending cases involve employees attempting to reclaim compulsory union dues used for political activities.
Beck cases comprise an estimated two percent of all the cases the NLRB processes each year. Yet, NLRB officials have provided no explanation for the extraordinary delays in issuance of this single class of cases. In at least one case, an employee died during the long wait for justice.
To force the NLRB to abandon its apparently deliberate practice of stonewalling these cases, Foundation attorneys filed three additional petitions for writs of mandamus with the U.S. Court of Appeals for the District of Columbia, The FOIA documents revealed that the Pirlott case -- fully briefed since October of 1992 -- was the second-oldest pending case overall. Pirlott was the oldest of a series of cases affecting tens of thousands of employees who are trying to reclaim their forced union dues used for politics. About 60 of these cases -- affecting tens of thousands of employees -- have been stonewalled within the NLRB bureaucracy for at least two years.
On September 1, 1999, finally compelled by the Foundation's pending mandamus petitions in federal court, the NLRB ruled on the Pirlott case. Sidestepping its responsibilities, the NLRB refused to rule on one of the primary issues in the case -- the forcing of non-member workers to pay for union organizing activity -- remanding it back to an administrative law judge (ALJ) to conduct further hearings. Having passed the buck, the NLRB then petitioned the federal court to dismiss the petition for a writ of mandamus as being moot because they had already "ruled" on the case.
Foundation attorneys filed an opposition to the dismissal motion stating that the NLRB had not fully ruled on the Pirlott case. Furthermore, by remanding the issue back to an ALJ, the NLRB had caused even further delays to avoid enforcing U.S. Supreme Court precedents.
NLRA at War with Constitutional Rights
When employees assert their rights under Beck, Abood, and other Foundation-won cases, they face the tremendous burden of showing what the union bosses do with the compulsory dues they seize. Workers are forced to endure seemingly endless red tape and harassment from union officials. In some cases, workers' attorneys must review thousands of documents, spend hundreds of hours interrogating recalcitrant union officials, and organize massive piles of evidence for trial. Meanwhile, well-funded union lawyers stonewall, conceal, and retaliate against the employees and their attorneys.
The late Justice Hugo Black foresaw this problem in 1961 when he opined that any form of compelled "agency shop" was unconstitutional, and he criticized the process that allows workers only a partial refund of compulsory union dues. In his dissent in Machinists v. Street, he wrote:
Justice Black understood the fact that federal labor law is stacked against individual workers who, in order to protect their constitutional rights, must do battle against giant unions with unlimited financial resources.
Ending Compulsory Unionism Abuse
For more than 30 years, the National Right to Work Foundation has battled in the courts to loosen the shackles of compulsory unionism, and much progress has been made. Today, we are representing more than 150,000 individual workers in nearly 500 cases nationwide. Many of these cases are on behalf of Beck objectors. These employees have courageously stepped forward to advance the law through the Foundation's precedent-setting litigation program. With each victory, Foundation attorneys are gradually improving the law through judicial precedent -- making it a little less difficult for the next employee.
The Foundation is the first conservative legal organization to take this approach. Its program is modeled after the successful NAACP Legal Defense Fund. In the early 1950s, when civil rights legislation was stalled in Congress, the group filed a series of coordinated legal actions. By taking those with the best potential to the U.S. Supreme Court, they were able to dramatically alter the law by establishing new judicial precedents. And that is exactly what the Foundation is doing to combat compulsory unionism abuses. Also as a part of legal strategy, Foundation attorneys are using the class-action lawsuit more and more, which unites large groups of workers in a single legal action.
Through U.S. Supreme Court victories in Beck, Abood, Ellis, Chicago Teachers Union v. Hudson, Lehnert v. Ferris Faculty Association, and Airline Pilots Association v. Miller, the Foundation has struck major blows to Big Labor's government-granted power over individual workers.
While the Beck Supreme Court precedent is not a cure-all, hundreds of thousands of employees are getting substantial dues reductions. The Foundation continues to make solid progress as demonstrated by our Beck enforcement cases -- two went before the U.S. Supreme Court in 1998 -- but much more needs to be done.
Ultimately, a Foundation case may lead the U.S. Supreme Court to declare exclusive representation itself unconstitutional or to jettison the Beck approach and declare forced dues entirely unconstitutional. Either way, individual employees would be vindicated. The latter of these two goals could be achieved by a Foundation case, Belhumeur v. Massachusetts Labor Relations Commission, now on appeal to the U.S. Supreme Court.
This situation poses two great challenges -- first, to increase public interest in this fundamental problem; and second, to focus on solutions that will have a meaningful and lasting impact. To achieve the latter, it is necessary to attack compulsory unionism abuse at its root, not to fashion new regulatory schemes and government bureaucracies to regulate its ill effects. This is exactly what the National Right to Work Foundation is doing, case by case; and with the help of more Americans, we can make progress even more swiftly.
Reed Larson is President of the National Right to Work Legal Defense Foundation, a non-profit, charitable organization which provides free legal aid to employees whose rights have been violated by compulsory unionism abuses. Currently, Foundation attorneys are providing free legal aid to more than 150,000 employees in almost 500 cases nationwide. The Foundation can be reached at 1-800-336-3600 and its website can accessed at www.nrtw.org. Reprinted with the kind permission of the Capitol Research Centre.
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