Communications Workers of America v. Beck
Encyclopedia
Communications Workers of America v. Beck, 487 U.S. 735 (1988) is a decision by the United States Supreme Court
which held that, in a union security agreement, unions
are authorized by statute to collect from non-members only those fees and dues necessary to perform its duties as a collective bargaining
representative. The rights identified by the Court in Communications Workers of America v. Beck have since come to be known as "Beck rights," and defining what Beck rights are and how a union must fulfill its duties regarding them is an active area of modern United States labor law
.
In the United States, the fee paid by non-union members under the agency shop is known as the "agency fee."
In the United States, unions established the closed shop, union shop, and agency shop since at least the 1880s. The National Labor Relations Act
(NLRA), the primary federal law governing labor relations in the United States, was enacted in 1935 and formally legalized the closed shop, union shop, or agency shop. In 1947, however, Congress enacted the Taft-Hartley Act
, which amended the NLRA. Title I, Section 101 of the Taft-Hartley Act added a new Section 14 to the NLRA, part (b) of which banned the closed shop:
The Taft-Haftley Act did not, however, outlaw the union shop or agency shop (although it did place some procedural restrictions on their establishment and use).
During World War II
, Congress also banned union political contributions to federal campaigns. The Smith-Connally Act, enacted in 1943, banned the use of union members' dues to make direct contributions to candidates for federal office but did not ban indirect expenditures which educated union members or the public about a candidate's voting record. The Taft-Hartley Act made the ban permanent. In 1948, the U.S. Supreme Court held that the Taft-Hartley Act's ban on use of union dues for political purposes did not extend to internal communications directed at a union's own members. Eleven years later, the Court refused to consider a federal district court
's ruling that Taft-Hartley Act did not ban expenditure of union dues on communications with the public.
Disputes over the constitutional and statutory status of union shop and agency shop agreements began almost immediately after the passage of the Taft-Hartley Act. In the Supreme Court's first major ruling on the issue in Railway Employes' Dept. v. Hanson, 351 U.S. 225 (1956), the Court held that the union security provisions of the Railway Labor Act
were constitutional
, but withheld judgment as to "the validity or enforceability of a union or closed shop agreement if other conditions of union membership are imposed or if the exaction of dues, initiation fees or assessments is used as a cover for forcing ideological conformity or other action in contravention of the First or the Fifth Amendment." The ruling in Hanson appeared to call into serious question the viability of union shop agreements. Five years later, in Machinists v. Street
, 367 U.S. 740 (1961), the Court held that the Railway Labor Act "denies the authority to a union, over the employee's objection, to spend his money for political causes which he opposes." The high court also confronted the issue of remedy in Machinists v. Street, and outlined several options which unions and employers might adopt as well as rejecting remedies which the district court in the case had chosen. The Supreme Court returned to the union security issue three more times in 1963. In NLRB v. General Motors Corp., 373 U.S. 734 (1963), the Court held that agency fees equal to dues are not prohibited by the National Labor Relations Act. Nonetheless, in Retail Clerks v. Schermerhorn, 373 U.S. 746 (1963), the Court questioned whether an agency fee set at a level equal to member dues was unfair because it set collective bargaining fees higher for non-members than for members. After reargument, however, the Court in Retail Clerks v. Schermerhorn, 375 U.S. 96 (1963), did not reach the issue again and instead decided the case on narrow procedural grounds (concluding that Florida's right-to-work law
outlawed the union shop provision at issue). The Court further elaborated on the issue of remedies in Railway Clerks v. Allen, 373 U.S. 113 (1963), allowing agency fee payers to opt out of all political expenditures rather than enunciate specific examples but refusing to allow them to act as a class. The Supreme Court extended its constitutional and equity analysis to public employees in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), holding that, where public employee collective bargaining exists and agency fee clauses are clearly authorized by law, public employee agency fee mechanisms are also constitutional.
Similarly, the National Labor Relations Board
(NLRB) had had occasion since 1945 to address the union shop and agency fee issues. Among its key cases was In re Union Starch & Refining Co., 87 NLRB 779, (1949). The Board held in Union Starch that unions were permitted to charge nonmembers agency fees that were nearly equal to full union dues so long as these agency fees were uniform in nature and no additional requirements were made in violation of NLRA Section 8(a)(3)(B) or §8(b)(2). A second important case, Teamsters Local No. 959, 167 NLRB 1042 (1967), the Board concluded that special assessments or fees could not be part of the agency fee. Reacting to the Supreme Court's ruling in Retail Clerks v. Schermerhorn, the Board held in Detroit Mailers Union No. 40, 192 NLRB 951 (1971) that certain fraternal activities may be included in the agency fee so long as they are not special assessments. The Board also ruled repeatedly on a number of issues associated with agency fees. It held in several cases that the NLRA does not permit the collection of assessments through the agency fee. The RLA, in contrast, does. The Board also held that when determining what an assessment is, facts (not labels) matter most.
In the years just before the Supreme Court took up the Beck case, however, it elaborated on its previous agency fee rulings. In Ellis v. Railway Clerks, 466 U.S. 435 (1984), the Supreme Court concluded that the agency fee may only cover those activities directly related to the union's role as a collective bargaining representative. These included national conventions (where dues levels were set and union programs debated and established), social activities (which enhanced union solidarity, especially during negotiations), grievance handling, contract negotiation costs, and union communications, but excluded union organizing activities. The Court in Ellis also wrestled with the issue of rebates, and concluded that a union could not simply rebate agency fees to workers for that would essentially constitute an forced, interest-free loan fro the worker to the union. In 1985, the Court held in Pattern Makers v. NLRB, 473 U.S. 95 (1985), that a union member may resign at any time without notice. Thus, Pattern Makers further undermined the union shop by giving workers the right to resign from the union at any time and incur no penalty (such as termination of employment). The Court also crafted additional rules regarding agency fees in Teachers v. Hudson, 475 U.S. 292 (1986). In Teachers, the union had failed to minimize the risk that agency fees might be used for impermissible purposes and had failed to provide agency fee payers with adequate information about how the agency fee was calculated. Now the Supreme Court imposed a third requirement, that agency fee payers must be offered a timely, fair, and objective mechanism for challenging the computation of agency fees. The Court did uphold, however, the use of interest-bearing escrow
accounts for holding disputed dues.
Despite these many rulings, the Supreme Court had never extended its agency fee rulings to unions covered by the National Labor Relations Act and many lower courts were confused as to the state of the law. In 1986, the 2nd Circuit Court of Appeals
ruled against non-union workers in a case very similar to Beck involving the United Auto Workers
.
(CWA) used union members' dues, in part, to support Vice President
Hubert Humphrey
's campaign for President of the United States
and Senator
Joseph Tydings
' re-election campaign.
Harry Beck was a maintenance worker with the Chesapeake & Potomac Telephone Co.
(C&PT) in Maryland
and a CWA organizer
. Beck protested the use of his union dues for a political cause in which he did not believe and asked for a refund. The CWA refused, arguing that using union dues for political expenditures was appropriate and legal. In the early 1970s, after disagreeing with national CWA officials over a union organizing drive in suburban Baltimore
, Maryland, Beck resigned from the union and began to pay the $10-a-month agency fee. Beck continued to protest the use of his agency fee for political purposes, and asked the CWA to provide a more accurate accounting of how much money it spent on politics. The union refused. In June 1976, Beck and 19 other non-union members of the CWA's bargaining unit
at C&PT sued the union for a refund. The National Right to Work Legal Defense Foundation
provided legal counsel and support to Beck and the other 18 workers. Beck quit C&PT in 1979 and moved to Oregon
, where he worked at CWA-organized job at American Telephone & Telegraph
and continued to pay his agency fee.
The issue of agency fee payments was a national and serious one. By 1984, about 5 percent of employees at work sites covered by a union contract had opted not to join the union and instead pay an agency fee. In 1987, the same number of workers covered by CWA contracts were agency fee payers. At the time of the Beck case in 1987, a majority of unions had set the agency fee about equal to full union dues. More than 90 percent of all collective bargaining agreements (covering six million workers) made under the authority of the NLRA contained an agency fee provision.
Judge James R. Miller, Jr. ruled in favor of Beck and the 19 other co-plaintiffs in March 1983. Beck et al. claimed that CWA had not only breached its duty of fair representation
but had also violated the agency fee payers' First Amendment rights as enunciated by the Supreme Court in Railway Employes' Dept. v. Hanson. Applying the clear and convincing evidence standard, the district court found that CWA could not show that 21 percent of the agency fee was spent on collective bargaining purposes alone, ordered an immediate refund of all dues collected since January 1976, and directed CWA to establish a record-keeping system which segregated collective bargaining and non-collective bargaining accounts. The refund was about $5,000 for all 20 workers.
CWA (and many other unions) quickly implemented a time-and-expenditures accounting system to meet the court's order. CWA also appealed the ruling.
United States Court of Appeals for the Fourth Circuit
agreed to hear CWA's appeal in November 1984, and handed down its ruling in October 1985. In a 2-to-1 ruling, the appellate court upheld the district court's ruling. The 4th Circuit Court found that the district court had erred in applying the clear and convincing standard, but on the basis of a statutory interpretation of the NLRA and the duty of fair representation claim found that the district court had correctly concluded that the agency fee was being illegally spent on items not related to collective bargaining. CWA petitioned for a rehearing en banc
, which was granted in April 1986. In a per curiam decision issued in September 1986, the 10 judges ruled 6-to-4 that the court had jurisdiction over the case on one or more grounds. The majority also held that the three-judge panel had ruled correctly, and held in favor of Beck again. CWA appealed again.
The U.S. Supreme Court granted certiorari
on May 31, 1987. In a surprising move, the U.S. Department of Justice
supported CWA's appeal. The Solicitor General
at the time, Charles Fried
, argued that the voluntary nature of collective bargaining agreements (including agency fee clauses) made the issue of coercion moot. Because states could and did ban agency fee agreements, there was no governmental action on which to base a constitutional claim against the union. And because Section 8(a)3 plainly requires uniform dues and fees (e.g., unions could not charge agency fee payers more nor less than regular members), the Justice Department felt Beck's claim was justified. Upset by the Justice Department's stand, Republican
Senators Jesse Helms
, Dan Quayle
, Steve Symms
, and Strom Thurmond
filed an amicus curiae
brief
urging the Supreme Court to rule in Beck's favor.
The Beck case was argued before the Supreme Court on January 11, 1988.
At the time, however, there was a concern that the court could split and issue no ruling. Associate Justice
Lewis F. Powell, Jr. had retired from the Supreme Court on June 26, 1987. President Ronald Reagan
nominated Judge Robert Bork
of the United States Court of Appeals for the District of Columbia to fill Powell's seat on July 1, but after a contentious nomination battle the U.S. Senate rejected Bork's nomination 58-to-42 on October 23. Six days later, President Reagan nominated Douglas H. Ginsburg
, Bork's fellow judge on the D.C. circuit court of appeals, for the Supreme Court. But Ginsburg withdrew his nomination eight days later after media reports that he had occasionally smoked marijuana as a law student and law professor. Reagan nominated Anthony Kennedy
, a judge on the United States Court of Appeals for the Ninth Circuit
, for the high court on November 11, 1987. Kennedy was unanimously confirmed on February 3, 1988. Kennedy had been unable to participate in oral argument in the Beck case, and Supreme Court tradition holds that a justice who has not participated in oral argument cannot participate in the decision a case (with only a few, rare exceptions).
delivered the opinion of the Court, joined by Chief Justice
William Rehnquist
and Associate Justices Byron White
, Thurgood Marshall
, and John Paul Stevens
. Associate Justices Harry Blackmun
, Sandra Day O'Connor
, and Antonin Scalia
joined in Parts I and II. Justice Blackmun filed a concurring opinion in part and a dissenting opinion in part, in which Justices O'Connor and Scalia joined. Associate Justice Anthony Kennedy took no part in the consideration or decision of the case.
The 20 workers sought relief on three claims: 1) That the agency fee was too high to cover only collective bargaining activities as authorized by NRLA Section 8(a)(3); 2) That the high agency fee breached the CWA's duty of fair representation; and 3) That the high agency fee violated the workers' First Amendment rights.
Justice Brennan first addressed the jurisdictional question that divided the 4th Circuit Court of Appeals and asserted court jurisdiction over both the duty of fair representation and constitutional challenges.
Brennan next turned to the workers' first two claims. The majority noted that NLRA Section 8(a)(3) contains two provisions which clearly permit agency fee agreements. For the majority, "The statutory question presented in this case, then, is whether this 'financial core' includes the obligation to support union activities beyond those germane to collective bargaining, contract administration, and grievance adjustment. We think it does not." The majority reviewed the Court's previous decision in Machinists v. Street and found it controlling. The majority further concluded that Section 8(a)(3) and Section 2, Eleventh of the Railway Labor Act were statutorily equivalent. The majority reviewed at length the legislative history of both the Railway Labor Act and the National Labor Relations Act to provide support for this conclusion, and to show why in each case Congress had approved of agency fee agreements. Relying on the Court's analysis of the Railway Labor Act in Street, the Supreme Court said CWA was not justified in concluding that Section 8(a)(3) permits the collection of agency fees in excess of the amount necessary to cover the costs of collective bargaining. The majority further found that the legislative history of the NLRA, the Taft-Hartley Act, and RLA showed that Congress intended to restrict agency fee agreements to cover collective bargaining alone and no other purposes.
Turning to the constitutional question, Brennan wrestled with the fact that "...in Railway Employees v. Hanson, 351 U.S. 225 (1956),[the Court held] that because the RLA pre-empts all state laws banning union-security agreements, the negotiation and enforcement of such provisions in railroad industry contracts involves 'governmental action' and is therefore subject to constitutional limitations." The question before the Court in Beck, then, was whether such governmental action extended to the acts of unions in the private sector where there was no such federal pre-emption. CWA argued that because Section 14(b) of the NLRA permits each state make its own choice in this regard, there could be no federal pre-emption and thus no governmental action. Brennan concluded for the majority that the Supreme Court need not decide the issue: The Court's doctrine was to rule narrowly on grounds of statutory construction where possible, and that issue had already been decided on statutory grounds in the workers' favor.
The Supreme Court affirmed the judgment of 4th Circuit Court of Appeals.
Blackmun then applied a plain meaning construction of the statutory language to both the RLA and NLRA, and concluded that CWA had not violated the NLRA. The NLRB, Blackmun said, had not changed its policy on agency fees nor its justifications for its conclusions. Justice Blackmun pointed to the NLRB's decision in In re Union Starch & Refining Co. and Detroit Mailers Union No. 40, and noted that the Justice Department had adopted a similar view in its amicus curiae brief. Blackmun also chastised the majority for mis-stating the NLRB's conclusion in Teamsters Local 959:
Blackmun noted that "the majority cannot cite one case in which the Board has held that uniformly required, periodic dues used for purposes other than 'collective bargaining' are not dues within the meaning of §8(a)(3).
Like the majority, Blackmun too extensively reviewed the history of the RLA and NLRA but rejected the majority's reading of those histories. The Supreme Court had previously held that the RLA was not identical to the NLRA, he wrote, and had cautioned lower courts and appellants that they should draw parallels between the two statutes very carefully. The majority, Blackmun concluded, had not made a careful comparison this time, and therefore its conclusions based on the similarities between the RLA and NLRA should be rejected.
A number of legal scholars who support the outcome of the ruling nonetheless criticize the Supreme Court's approach to Beck's First Amendment challenge. These scholars strongly criticize the Court for not deciding the case on First Amendment grounds, and argue that a constitutional ruling on agency fee issues would provide for clearer decisions, a sounder basis for workers to challenge agency fee calculations, and enhanced free speech rights not only for dissenting workers but for all employees.
A second major criticism of the case is that the Court did not clearly define what the First Amendment violation was. The Supreme Court has a long-standing doctrine of not ruling on a statute's constitutionality if a case may be decided on statutory grounds. Subsequently, the Beck court's discussion of First Amendment issues was perfunctory, acknowledging that there might be grounds for a First Amendment challenge but refusing to discuss the issue further. This has generated confusion among legal scholars and workers as to what First Amendment challenges may be brought. For example, critics have pointed out that a claim under the First Amendment can only be brought when there is state action
, as opposed to private action. The Supreme Court's early agency fee decisions (Hanson, Street, and Ellis) found that state action occurred under the Railway Labor Act because the Act prohibited union shops. Yet, although the Court went to great lengths to identify the similarities between the RLA and NLRA in Beck, the Court (in dicta
) refused to decide whether state action had occurred under the NLRA. Legal scholars have pointed out that the Beck Court cited two cases which did find state action under the NLRA, but did not make any determination in Beck. One scholar has concluded that the Court's tests for determining state action are not useful enough to determine the issue. Adding to the confusion is that the Supreme Court has never made it clear how to apply a First Amendment analysis to labor law. The Court and legal scholars point out that labor law is considered unique in the American statutory and constitutional framwork, which may mean that traditional First Amendment analyses do not apply. "[T]he Court consistently has upheld the validity...of the Labor Act. In doing so, the Court has repeatedly referred to the special nature of labor legislation to explain its unusual deference to a statute so incompatible with judicially developed constitutional norms." It may be that the Court's existing standard for assessing government interference with speech (the strict scrutiny
standard) is inappopriate to apply to labor law. Many of these analyses conclude that the Beck court should have clarified these issues, and absent such clarification the First Amendment rights of workers remain unprotected.
Third, some legal scholars have criticized the ruling for not establishing a right which can be successfully exercised in the real world. The Supreme Court itself recognized in Abood that implementing its limitations on agency fees would be difficult to administer, and in dicta suggested that further rulings would clarify its thinking. But the Beck decision did not provide this clarification. The ruling did not address whether or how unions should inform workers of their Beck rights, what charges are "germane" to collective bargaining, or what remedies non-members have if their rights are violated. Because of this confusion, some lower courts have gone so far as to approve schemes whereby union members may assert their Beck rights only during limited "window periods" (in apparent contravention of Pattern Makers) and that Beck objectors renew their objection annually (in apparent contravention of General Motors). A U.S. government report has concluded that it is uncertain whether notifying employees of their Beck rights but not other rights available under the NLRA would effectively protect workers' rights.
Other observers conclude that Beck was wrongly decided. The reasons for reaching this conclusion vary, however. Some critics, in reviewing the Supreme Court's First Amendment jurisprudence, have found that there is no simply no First Amendment burden imposed by an agency fee which includes charges not related to collective bargaining. Others conclude that while there may be some infringement on free speech, the voluntary nature of collective bargaining does not raise it to the level of state action under existing Supreme Court doctrine. Many conclusions about state action rely on the fact that the NLRA grants unions the right to charge agency fees, thus making the union a state actor. But scholars critical of Beck point to the Court's ruling in Jackson v. Metropolitan Edison Co.
, where the Supreme Court held that even a governmental grant of power is insufficient to create state action. At least one commentator has concluded that the Court's First Amendment analysis in Beck is unbalanced because it fails to take into account the associational liberties also protected by the First Amendment.
Fifth, some analyses conclude that the Court's method statutory interpretation in the Beck is flawed. Justice Blackmun made this claim in his dissent (as noted above). Some legal commentators agree, noting that the ruling rejects the Court's well-settled doctrines of statutory construction, which leads to a misinterpretation of Congress' legislative intent.
Sixth, critics have argued that the Beck Court misapplied its duty of fair representation doctrine. One legal commentator has concluded that the Supreme Court's duty of fair representation decisions do not lead to the conclusion that agency fees can be restricted solely to collective bargaining purposes. Another has argued that the modern labor unions can only meet their duty to fairly represent workers if they engage in lobbying and legislative activity, a conclusion which undercuts the Beck court's decision as well.
Seventh, some scholars point out that the Beck ruling may lead to unanticipated outcomes. At least one commentary on Beck concludes that Beck rights, if successfully implemented, may lead large numbers of workers to resign from a union during a strike. These workers will be able to continue to work during a strike (incurring none of the disadvantages a strike brings), and yet will still be able to enjoy the benefits of collective bargaining (assuming the strike is successful and an agreement is negotiated). The strike is the most powerful weapon unions have, and undermining the union's ability to strike would put labor unions at a distinct disadvantage in collective bargaining. The NLRB and Supreme Court have acknowledged the role that agency fee payers can play in undermining strikes. In NLRB v. Textile Workers Union, 409 U.S. 213 (1972), the Supreme Court ruled that once a union member had resigned, the union could not punish that worker for crossing picket lines. And in Pattern Makers' League v. NLRB, (as noted above) the Court said unions must permit members to resign at any time. Decisions like these have informed the NLRB's rulings on the issue as well. The Board found that an employer did not commit an unfair labor practice
when it distributed notices to employees prior to a strike that outlined an employee's rights during a strike (including the right to become an agency fee payer and cross picket lines). The Board also held that, once a single employee has inquired about their right to become an agency fee payer, it is legal for an employer to notify all workers about this right. But in the absence of an employee-initiated iniquiry, it is not, the Board says, legal for employers to approach striking workers and ask them to become agency fee payers. The negative implications of widespread worker resignation from unions prior to or during a strike is clear, some argue. This may be changing, however, as more unions turn away from strikes and toward comprehensive campaign
s. It is also unclear how Beck may impact dues checkoff (an agreement between the employer, union, and employee under which the employer agrees to deduct union dues directly from the employee's paycheck and turn it over to the union). In 1991, the NLRB held that dues checkoff agreements create an obligation to pay dues in the same way that becoming a union member does. It is possible that Beck and subsequent rulings could also undermine dues checkoff agreements.
The Court first revisited the issue in Lehnert v. Ferris Faculty Association in 1991. The Court was "sharply divided", writing "four opinions that were supported in whole or in part by varying numbers of Justices" and citing divergent reasons for supporting those parts of the decision they supported. "[A]ll nine Justices rejected a broader argument put forward by the objecting employees that the employees should not have to pay for activities of the national union ... that were not undertaken directly on behalf of the ... bargaining unit." Eight justices agreed that unions could not charge agency fee payers for lobbying activities. But on other issues, the court split. The case was more difficult to adjudicate because it involved state action (the bargaining unit was composed of public employees) and thus brought First Amendment
issues into consideration and because of the unique nature of the union's dues structure. Writing for the majority, Justice Blackmun established a three-prong test for determining the constitutionality and statutory legality of agency fee charges in public employee bargaining units: 1) The charges must be "germane" to collective bargaining activity; 2) The charges must not "significantly" burden the non-members' free speech rights; and 3) Charges must be justified by the need for labor peace or to avoid the free rider problem
. Acceptable charges included that part of affiliation fees which are spent on collective bargaining, collective bargaining expenditures destined for other states, expenditures for national union publications insofar as they support collective bargaining, information services and other miscellaneous items that are not political nnor public in nature and which benefit of all workers even though they do not directly impact the bargaining unit, expenditures to attend union meetings and conventions, and strike expenses (whether the strike is legal or not). Non-chargeable expenses include: Lobbying, electoral, or other political activities not directly related to contract bargaining or implementation; political or public activities aimed at winning a greater budget for the collective bargaining unit; litigation or publications reporting on litigation that does not concern directly concern the bargaining unit; and public relations efforts (including informational picketing, media purchases, signs, posters, and buttons) designed to enhance public respect for the workers' profession. At least one legal scholar believes the Lehnert decision shifted away from the Court's traditional rationale that agency fees must have a strong link to collective bargaining purposes:
Adding additional confusion, the Lehnert court also concluded that even charges germane to collective bargaining were impermissible if they burdened First Amendment rights too heavily in order to achieve the policy outcomes intended by Congress (although the Court did not identify what constituted an impermissible level of burden). The impact of Lehnert, however, appears minimal. At least one legal scholar refused to list Lehnert among the past decade's most important cases in the public education law. Both courts and legal scholars have questioned whether the judicial system should be "drawn into this micro-level of dispute resolution".
Other Supreme Court rulings since Lehnert have focused more narrowly on technical issues. In Air Line Pilots Association v. Miller, 523 U.S. 866 (1998), the Supreme Court addressed the issue of whether non-members must use the union's arbitration process in order to challenge the calculation of agency fees. In a 7-to-2 decision, the Court held that agency fee payers did not have to exhaust the union's challenge procedures. The same year, the Court addressed the issue of whether a union committed an unfair labor practice if its collective bargaining agreement contained the original NLRA language on union shops but no additional information (such as information about the Supreme Court's rulings in Beck and other cases). A unanimous Supreme Court held in Marquez v. Screen Actors Guild, 525 U.S. 33 (1998) that a union did not breach its duty of fair representation by merely including the language of the NLRA, as amended. The Marquez Court relied heavily on its ruling in NLRB v. News Syndicate Co., 365 U.S. 695 (1961), where it had previously held that the NLRB had no authority invalidate a contract clause solely because the clause mirrored statutory language but did not go further to advise members to not violate the law. About a decade later, the high court revisited the agency fee issue three more times. It upheld in Davenport v. Washington Education Association, 551 U.S. 177 (2007), a Washington state ballot initiative which required public employee unions to obtain each member's and nonmember's prior authorization before spend their dues or agency fees for election-related purposes. The decision was moot even before it was handed down, because the Washington State Legislature
had already changed the law to make it easier for unions to comply. The ruling was very narrowly decided, however, leading to much criticism. "Correctly understood, this decision promises little and delivers even less because it fails to deal decisively and comprehensively with the issues that both earlier private sector and public sector union dues disputes illuminated but failed to settle." Other legal scholars expressed dismay that the Davenport Court did not confront the First Amendment issues raised by the case. A year later, in Locke v. Karass
, 07-610 (2008), the Supreme Court held that it was not unconstitutional for a local union to charge nonmembers for national litigation expenses unrelated to local collective bargaining activities. In 2009, the Supreme Court held in Ysursa v. Pocatello Education Association, 07-869 (2009), that a state's refusal to agree to dues checkoff did not abridge a union's First Amendment rights.
George H. W. Bush
issued an executive order, E.O. 12800, that required contractors
doing business with the federal government to provide their non-union employees with notice of their Beck rights. Executive branch officials estimated that about 2 million to 3 million (10.5 percent to 15.8 percent) of the 19 million workers represented by labor unions are nonmembers, and that NLRB officials had issued more than 300 citations accusing unions of not notifying their members of their Beck rights. Labor leaders dismissed the Executive Order, claiming they already met the requirements set down by the Supreme Court. The Bush administration estimated the Executive Order would keep $1.2 billion to $2.4 billion a year from being collected by labor unions. The administration also said it would order the U.S. Department of Labor
(DOL) to issue new regulations that would require unions to report in far greater detail the amount of money they spend on political activities, lobbying, and collective bargaining. Bush also asked Congress to enact legislation formally encoding the Beck ruling into federal labor law. Unions and Democrats
derided the action as election year politicking, while right-to-work advocates hailed it as long overdue. At least one legal scholar criticized the order for not doing enough to implement the Beck decision, and for putting the onus of notification on the employer rather than the union.
The Clinton, Bush, and Obama administrations have each taken action to either rescind or reinstate this Executive Order. President Bill Clinton
issued Executive Order 12836 on February 1, 1993, which revoked Executive Order 12800. The Labor Department subsequently withdrew its Bush-era regulations on union financial reporting on December 21, 1993. President George W. Bush
then issued Executive Order 13201 on February 16, 2001, largely reinstating Executive Order 12800 and ordering DOL to re-issue its regulations. A coalition of unions sued to enjoin enforcement of the Executive Order. The United States district court for the District of Columbia overturned the Executive Order on the grounds that the NLRA gave the NLRB exclusive jurisdiction over Beck rights, but the D.C. Circuit Court of Appeals
reversed, the Supreme Court refused to hear the case, and Executive Order 13201 went into effect. The last action was taken on January 30, 2009, when President Barack Obama
issued Executive Order 13496, revoking E.O. 13201 and the DOL regulations yet again.
The National Labor Relations Board (NLRB) struggled to implement the Court's holding in Beck. In 1989, the National Right to Work Committee polled NLRB offices nationwide, posing as workers and asking about the requirement to pay union dues. The group found that Board agents and other staff at 22 of 29 offices gave the wrong information. Although the NLRB initially dismissed the report, within a few weeks the agency admitted its errors and ordered all its regional offices to review recent developments in labor law and provide accurate information on agency fee rights.
In 1992, for only the second time in its history, the National Labor Relations Board undertook a regulatory rulemaking
aimed at resolving the divergent, complex issues raised by the Beck decision. The proposed rulemaking was announced in May 1992, and the proposed rule issued on September 22, 1992. But after three and a half years of inaction on the proposed regulation, the Board withdrew the rule on March 19, 1996—concluding that it could proceed faster through its more traditional case-by-case approach.
Shortly after the labor board published its proposed rule, it issued its first ruling addressing the issues raised in the Beck decision. In Electrical Workers IUE, Local 444 (Paramax Systems), 311 NLRB 1031 (1993), the Board held that Beck imposed a duty on unions to provide information on members' and nonmembers' Beck rights via the mail at least once a year, whether an employee has requested the information or not. But over the next several years, the NLRB ruled on almost no other Beck cases even though nearly 400 complaints had been brought before the Board.
Finally, the Board consolidated 28 Beck cases under California Saw & Knife Works, 320 NLRB 224 (1995). The International Association of Machinists and Aerospace Workers
(IAM) provided a Beck notification to each member yearly via its monthly magazine, and required members to exercise these rights once a year during a window period. The Board held that the union had committed an unfair labor practice by failing to provide a Beck rights notice to new members and by not providing a Beck rights notice to new members who were resigning from the union but had not yet received the annual notice, but did not commit a ULP by failing to notify resigning union members of their Beck rights at the time of their resignation. The Board distinguished its holding in California Saw from its prior ruling in Paramax Systems, and found the window period (as well as other restrictions on the submission of resignation and objector status) to be an unfair labor practice. The Board rejected numerous challenges to the way agency fees were calculated, challenges made, and expenditures verified. The California Saw decision was criticized for only applying to nonmembers. The NLRB addressed the Beck rights of members shortly thereafter in United Paperworkers International Union, Local 1033 (Weyerhauser Paper Co.), 320 NLRB 349 (1995). In that case, the NLRB upheld its ruling in California Saw and said that yearly notice to current members, including the rights outlined by the courts and NLRB (not just the statutory language of the NLRA), was all that was required of unions.
Two years later, the NLRB decided on the preferred remedy that should be imposed where a union failed to inform employees of their Beck rights. In Rochester Manufacturing Co., 323 NLRB 260 (1997), the Board ordered that the union return to the status quo ante
, give all workers their Beck rights notice, give each all workers the opportunity to submit agency fee calculation objections for every dues collection period at issue, and the reimburse each objecting employee.
From 1994 to 1998, the NLRB issued 18 consolidated or single Beck cases.
Tom DeLay
introduced H.R. 2589, the "Workers' Political Rights Act of 1989," on June 8, 1989. The bill, which died
in committee
, would have amended the Federal Election Campaign Act
of 1971 to: 1) Add union political committees to the list of political action committee
s regulated by the Federal Election Commission
; 2) Require unions to give each worker separate, yearly Beck notices; 3) Require unions to give each worker Beck notices when they join the union and when they resign from the union; 4) Require unions to undergo independent audit
s each year to verify the calculation of agency fees; and 5) Require unions to provide members detailed information on the calculation of agency fees.
Additional action followed over the next several years. In July 1990, Senator Orrin Hatch
proposed an amendment to the "Senatorial Election Campaign Act of 1989" (S. 137), a major campaign finance reform
bill then under consideration in the U.S. Senate. The Hatch amendment was defeated on a close vote of 59-to-41. Senator David Boren then proposed a less restrictive amendment to S. 137, which was adopted by a vote of 57 to 43. Although the amended bill passed the Senate on August 1, 1990, it was never referred to the House and died at the end of the congressional session. DeLay reintroduced his Beck bill in 1991, where it died again without action. In 1996, Representative Harris W. Fawell
introduced the "Worker Right to Know Act" (H.R. 3580), a bill to amend the NLRA to ban unions from charging any worker (member or nonomember) fees unrelated to collective bargaining, contract administration, or grievance adjustment unless the worker gave the union explicit, annual consent. Hearings on the legislation occurred, but the bill died in committee. In 1997, Senator Paul Coverdell
introduced a bill (S. 497, the "National Right to Work Act of 1997") which would have banned all compulsory union membership. Introduced in the House as well, both bills died in committee.
The last major push for congressional action came in 1996–1997. Several bills had been introduced in both the House and the Senate. The most prominent was Senator Don Nickles
' "Paycheck Protection Act," which Senate Majority Leader
Trent Lott
re-introduced in 1998. The issue became caught in campaign finance reform legislation that year. Section 501 of the "Bipartisan Campaign Reform Act of 1997" (BRCA) merely codified the Beck decision, but the "Paycheck Protection Act" went much further and required all workers to affirm on an annual basis whether their dues could be used for political purposes. Senator Lott offered the Nickles bill as an amendment to the BRCA, which many Democrats (and some Republicans) saw as a poison pill amendment
. Under procedures adopted by the Senate, Senators would need to reject the Lott amendment before voting on the BRCA. But with Republicans unwilling to vote against the amendment (which was popular with their conservative base), the Lott amendment was added to the BRCA and the Beck amendment died along with the BRCA after a number of other procedural votes.
Several bills were offered in Congress over the next few years to either ban agency shop agreements or to adopt various provisions of the 1997 Nickles bill, but all of them died in committee. An analysis of the major bills under congressional consideration from 1988 to 1997 found, however, that nearly all of them suffered from significant legal flaws, and none went far enough in protecting workers' Beck rights.
Pete Wilson
and a lead of roughly 35 points in the polls in April, the initiative went down to defeat 52-to-48 on election day in June after a fierce battle.
The defeat of the initiative had a significant effect nationwide. Similar initiatives and legislation were defeated in 29 states by 2002. By September 2009, only five states had adopted the proposal via initiative or legislation (Idaho, Michigan, Ohio, Washington, and Wyoming), while a sixth (Colorado) had done so via executive order.
(who opposes compulsory unionism) has argued that even the most stringent laws are unlikely to have any impact, as the number of agency fee payers is small compared to the number of union members. At least one legal scholar has questioned the constitutionality of paycheck protection laws, while another, detailed analysis of the Washington state effort has concluded that instead of decreasing the amount of union dues available for political expenditures paycheck protection actually increased it (from approximately $630,000 to approximately $780,000) as unions shifted member dues internally to account for the agency fees going toward collective bargaining.
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
which held that, in a union security agreement, unions
Trade union
A trade union, trades union or labor union is an organization of workers that have banded together to achieve common goals such as better working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members and negotiates labour contracts with...
are authorized by statute to collect from non-members only those fees and dues necessary to perform its duties as a collective bargaining
Collective bargaining
Collective bargaining is a process of negotiations between employers and the representatives of a unit of employees aimed at reaching agreements that regulate working conditions...
representative. The rights identified by the Court in Communications Workers of America v. Beck have since come to be known as "Beck rights," and defining what Beck rights are and how a union must fulfill its duties regarding them is an active area of modern United States labor law
United States labor law
United States labor law is a heterogeneous collection of state and federal laws. Federal law not only sets the standards that govern workers' rights to organize in the private sector, but also overrides most state and local laws that attempt to regulate this area. Federal law also provides more...
.
Background
The union security agreement is a contractual agreement, usually part of a union collective bargaining agreement, in which an employer and a trade or labor union agree on the extent to which the union may compel employees to join the union, and/or whether the employer will collect dues, fees, and assessments on behalf of the union. Broadly speaking, there are three types of union security agreements:-
- The closed shopClosed shopA closed shop is a form of union security agreement under which the employer agrees to hire union members only, and employees must remain members of the union at all times in order to remain employed....
, where only union members may be hired, and an employee must remain a union member in order to remain employed; - The union shopUnion shopA union shop is a form of a union security clause under which the employer agrees to hire either labor union members or nonmembers but all non-union employees must become union members within a specified period of time or lose their jobs...
, where the employer may hire union or non-union workers, but employees must join the union in order to remain employed; and - The agency shopAgency shopAn agency shop is a form of union security agreement where the employer may hire union or non-union workers, and employees need not join the union in order to remain employed. However, the non-union worker must pay a fee to cover collective bargaining costs...
, where the employer may hire union or non-union workers, and employees need not join the union in order to remain employed. However, the non-union worker must pay a fee to cover collective bargaining costs.
- The closed shop
In the United States, the fee paid by non-union members under the agency shop is known as the "agency fee."
In the United States, unions established the closed shop, union shop, and agency shop since at least the 1880s. The National Labor Relations Act
National Labor Relations Act
The National Labor Relations Act or Wagner Act , is a 1935 United States federal law that limits the means with which employers may react to workers in the private sector who create labor unions , engage in collective bargaining, and take part in strikes and other forms of concerted activity in...
(NLRA), the primary federal law governing labor relations in the United States, was enacted in 1935 and formally legalized the closed shop, union shop, or agency shop. In 1947, however, Congress enacted the Taft-Hartley Act
Taft-Hartley Act
The Labor–Management Relations Act is a United States federal law that monitors the activities and power of labor unions. The act, still effective, was sponsored by Senator Robert Taft and Representative Fred A. Hartley, Jr. and became law by overriding U.S. President Harry S...
, which amended the NLRA. Title I, Section 101 of the Taft-Hartley Act added a new Section 14 to the NLRA, part (b) of which banned the closed shop:
- "Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law."
The Taft-Haftley Act did not, however, outlaw the union shop or agency shop (although it did place some procedural restrictions on their establishment and use).
During World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
, Congress also banned union political contributions to federal campaigns. The Smith-Connally Act, enacted in 1943, banned the use of union members' dues to make direct contributions to candidates for federal office but did not ban indirect expenditures which educated union members or the public about a candidate's voting record. The Taft-Hartley Act made the ban permanent. In 1948, the U.S. Supreme Court held that the Taft-Hartley Act's ban on use of union dues for political purposes did not extend to internal communications directed at a union's own members. Eleven years later, the Court refused to consider a federal district court
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
's ruling that Taft-Hartley Act did not ban expenditure of union dues on communications with the public.
Disputes over the constitutional and statutory status of union shop and agency shop agreements began almost immediately after the passage of the Taft-Hartley Act. In the Supreme Court's first major ruling on the issue in Railway Employes' Dept. v. Hanson, 351 U.S. 225 (1956), the Court held that the union security provisions of the Railway Labor Act
Railway Labor Act
The Railway Labor Act is a United States federal law that governs labor relations in the railroad and airline industries. The Act, passed in 1926 and amended in 1934 and 1936, seeks to substitute bargaining, arbitration and mediation for strikes as a means of resolving labor disputes...
were constitutional
Constitutionality
Constitutionality is the condition of acting in accordance with an applicable constitution. Acts that are not in accordance with the rules laid down in the constitution are deemed to be ultra vires.-See also:*ultra vires*Company law*Constitutional law...
, but withheld judgment as to "the validity or enforceability of a union or closed shop agreement if other conditions of union membership are imposed or if the exaction of dues, initiation fees or assessments is used as a cover for forcing ideological conformity or other action in contravention of the First or the Fifth Amendment." The ruling in Hanson appeared to call into serious question the viability of union shop agreements. Five years later, in Machinists v. Street
Machinists v. Street
Machinists v. Street, 367 U.S. 740 , was a decision by the United States Supreme Court, which held that “a union may constitutionally compel contributions from dissenting nonmembers in an agency shop only for the costs of performing the union's statutory duties as exclusive bargaining agent.”...
, 367 U.S. 740 (1961), the Court held that the Railway Labor Act "denies the authority to a union, over the employee's objection, to spend his money for political causes which he opposes." The high court also confronted the issue of remedy in Machinists v. Street, and outlined several options which unions and employers might adopt as well as rejecting remedies which the district court in the case had chosen. The Supreme Court returned to the union security issue three more times in 1963. In NLRB v. General Motors Corp., 373 U.S. 734 (1963), the Court held that agency fees equal to dues are not prohibited by the National Labor Relations Act. Nonetheless, in Retail Clerks v. Schermerhorn, 373 U.S. 746 (1963), the Court questioned whether an agency fee set at a level equal to member dues was unfair because it set collective bargaining fees higher for non-members than for members. After reargument, however, the Court in Retail Clerks v. Schermerhorn, 375 U.S. 96 (1963), did not reach the issue again and instead decided the case on narrow procedural grounds (concluding that Florida's right-to-work law
Right-to-work law
Right-to-work laws are statutes enforced in twenty-two U.S. states, mostly in the southern or western U.S., allowed under provisions of the federal Taft–Hartley Act, which prohibit agreements between labor unions and employers that make membership, payment of union dues, or fees a condition of...
outlawed the union shop provision at issue). The Court further elaborated on the issue of remedies in Railway Clerks v. Allen, 373 U.S. 113 (1963), allowing agency fee payers to opt out of all political expenditures rather than enunciate specific examples but refusing to allow them to act as a class. The Supreme Court extended its constitutional and equity analysis to public employees in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), holding that, where public employee collective bargaining exists and agency fee clauses are clearly authorized by law, public employee agency fee mechanisms are also constitutional.
Similarly, the National Labor Relations Board
National Labor Relations Board
The National Labor Relations Board is an independent agency of the United States government charged with conducting elections for labor union representation and with investigating and remedying unfair labor practices. Unfair labor practices may involve union-related situations or instances of...
(NLRB) had had occasion since 1945 to address the union shop and agency fee issues. Among its key cases was In re Union Starch & Refining Co., 87 NLRB 779, (1949). The Board held in Union Starch that unions were permitted to charge nonmembers agency fees that were nearly equal to full union dues so long as these agency fees were uniform in nature and no additional requirements were made in violation of NLRA Section 8(a)(3)(B) or §8(b)(2). A second important case, Teamsters Local No. 959, 167 NLRB 1042 (1967), the Board concluded that special assessments or fees could not be part of the agency fee. Reacting to the Supreme Court's ruling in Retail Clerks v. Schermerhorn, the Board held in Detroit Mailers Union No. 40, 192 NLRB 951 (1971) that certain fraternal activities may be included in the agency fee so long as they are not special assessments. The Board also ruled repeatedly on a number of issues associated with agency fees. It held in several cases that the NLRA does not permit the collection of assessments through the agency fee. The RLA, in contrast, does. The Board also held that when determining what an assessment is, facts (not labels) matter most.
In the years just before the Supreme Court took up the Beck case, however, it elaborated on its previous agency fee rulings. In Ellis v. Railway Clerks, 466 U.S. 435 (1984), the Supreme Court concluded that the agency fee may only cover those activities directly related to the union's role as a collective bargaining representative. These included national conventions (where dues levels were set and union programs debated and established), social activities (which enhanced union solidarity, especially during negotiations), grievance handling, contract negotiation costs, and union communications, but excluded union organizing activities. The Court in Ellis also wrestled with the issue of rebates, and concluded that a union could not simply rebate agency fees to workers for that would essentially constitute an forced, interest-free loan fro the worker to the union. In 1985, the Court held in Pattern Makers v. NLRB, 473 U.S. 95 (1985), that a union member may resign at any time without notice. Thus, Pattern Makers further undermined the union shop by giving workers the right to resign from the union at any time and incur no penalty (such as termination of employment). The Court also crafted additional rules regarding agency fees in Teachers v. Hudson, 475 U.S. 292 (1986). In Teachers, the union had failed to minimize the risk that agency fees might be used for impermissible purposes and had failed to provide agency fee payers with adequate information about how the agency fee was calculated. Now the Supreme Court imposed a third requirement, that agency fee payers must be offered a timely, fair, and objective mechanism for challenging the computation of agency fees. The Court did uphold, however, the use of interest-bearing escrow
Escrow
An escrow is:* an arrangement made under contractual provisions between transacting parties, whereby an independent trusted third party receives and disburses money and/or documents for the transacting parties, with the timing of such disbursement by the third party dependent on the fulfillment of...
accounts for holding disputed dues.
Despite these many rulings, the Supreme Court had never extended its agency fee rulings to unions covered by the National Labor Relations Act and many lower courts were confused as to the state of the law. In 1986, the 2nd Circuit Court of Appeals
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
ruled against non-union workers in a case very similar to Beck involving the United Auto Workers
United Auto Workers
The International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, better known as the United Auto Workers , is a labor union which represents workers in the United States and Puerto Rico, and formerly in Canada. Founded as part of the Congress of Industrial...
.
Beck's complaint and lawsuit
In 1968, the Communications Workers of AmericaCommunications Workers of America
Communications Workers of America is the largest communications and media labor union in the United States representing about 550,000 members in both the private and public sectors. The union has 27 locals in Canada via CWA-SCA Canada representing about 8,000 members...
(CWA) used union members' dues, in part, to support Vice President
Vice President of the United States
The Vice President of the United States is the holder of a public office created by the United States Constitution. The Vice President, together with the President of the United States, is indirectly elected by the people, through the Electoral College, to a four-year term...
Hubert Humphrey
Hubert Humphrey
Hubert Horatio Humphrey, Jr. , served under President Lyndon B. Johnson as the 38th Vice President of the United States. Humphrey twice served as a United States Senator from Minnesota, and served as Democratic Majority Whip. He was a founder of the Minnesota Democratic-Farmer-Labor Party and...
's campaign for President of the United States
United States presidential election, 1968
The United States presidential election of 1968 was the 46th quadrennial United States presidential election. Coming four years after Democrat Lyndon B. Johnson won in a historic landslide, it saw Johnson forced out of the race and Republican Richard Nixon elected...
and Senator
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
Joseph Tydings
Joseph Tydings
Joseph Davies Tydings is a former Democratic member of the United States Senate, representing the state of Maryland from 1965 to 1971....
' re-election campaign.
Harry Beck was a maintenance worker with the Chesapeake & Potomac Telephone Co.
C&P Telephone
The Chesapeake and Potomac Telephone Company, usually known as C&P Telephone, was a d/b/a name for four Bell Operating Companies providing service to Washington, D.C., Maryland, West Virginia, and Virginia....
(C&PT) in Maryland
Maryland
Maryland is a U.S. state located in the Mid Atlantic region of the United States, bordering Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware to its east...
and a CWA organizer
Union organizer
A union organizer is a specific type of trade union member or an appointed union official. A majority of unions appoint rather than elect their organizers....
. Beck protested the use of his union dues for a political cause in which he did not believe and asked for a refund. The CWA refused, arguing that using union dues for political expenditures was appropriate and legal. In the early 1970s, after disagreeing with national CWA officials over a union organizing drive in suburban Baltimore
Baltimore
Baltimore is the largest independent city in the United States and the largest city and cultural center of the US state of Maryland. The city is located in central Maryland along the tidal portion of the Patapsco River, an arm of the Chesapeake Bay. Baltimore is sometimes referred to as Baltimore...
, Maryland, Beck resigned from the union and began to pay the $10-a-month agency fee. Beck continued to protest the use of his agency fee for political purposes, and asked the CWA to provide a more accurate accounting of how much money it spent on politics. The union refused. In June 1976, Beck and 19 other non-union members of the CWA's bargaining unit
Bargaining unit
A bargaining unit in labor relations is a group of employees with a clear and identifiable community of interests who are represented by a single labor union in collective bargaining and other dealings with management. Examples would be "non-management professors"; "law enforcement professionals";...
at C&PT sued the union for a refund. The National Right to Work Legal Defense Foundation
National Right to Work Legal Defense Foundation
The National Right to Work Legal Defense Foundation is a charitable organization that provides free legal assistance to employees who claim that their civil rights have been violated by compulsory unionism. The Foundation was founded in 1968 and has represented 20,000 employees in over 2,200 cases,...
provided legal counsel and support to Beck and the other 18 workers. Beck quit C&PT in 1979 and moved to Oregon
Oregon
Oregon is a state in the Pacific Northwest region of the United States. It is located on the Pacific coast, with Washington to the north, California to the south, Nevada on the southeast and Idaho to the east. The Columbia and Snake rivers delineate much of Oregon's northern and eastern...
, where he worked at CWA-organized job at American Telephone & Telegraph
American Telephone & Telegraph
AT&T Corp., originally American Telephone and Telegraph Company, is an American telecommunications company that provides voice, video, data, and Internet telecommunications and professional services to businesses, consumers, and government agencies. AT&T is the oldest telecommunications company...
and continued to pay his agency fee.
The issue of agency fee payments was a national and serious one. By 1984, about 5 percent of employees at work sites covered by a union contract had opted not to join the union and instead pay an agency fee. In 1987, the same number of workers covered by CWA contracts were agency fee payers. At the time of the Beck case in 1987, a majority of unions had set the agency fee about equal to full union dues. More than 90 percent of all collective bargaining agreements (covering six million workers) made under the authority of the NLRA contained an agency fee provision.
Prior disposition
U.S. District CourtUnited States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
Judge James R. Miller, Jr. ruled in favor of Beck and the 19 other co-plaintiffs in March 1983. Beck et al. claimed that CWA had not only breached its duty of fair representation
Duty of fair representation
The duty of fair representation is incumbent upon U.S. labor unions that are the exclusive bargaining representative of workers in a particular group. It is the obligation to represent all employees fairly, in good faith, and without discrimination...
but had also violated the agency fee payers' First Amendment rights as enunciated by the Supreme Court in Railway Employes' Dept. v. Hanson. Applying the clear and convincing evidence standard, the district court found that CWA could not show that 21 percent of the agency fee was spent on collective bargaining purposes alone, ordered an immediate refund of all dues collected since January 1976, and directed CWA to establish a record-keeping system which segregated collective bargaining and non-collective bargaining accounts. The refund was about $5,000 for all 20 workers.
CWA (and many other unions) quickly implemented a time-and-expenditures accounting system to meet the court's order. CWA also appealed the ruling.
United States Court of Appeals for the Fourth Circuit
United States Court of Appeals for the Fourth Circuit
The United States Court of Appeals for the Fourth Circuit is a federal court located in Richmond, Virginia, with appellate jurisdiction over the district courts in the following districts:*District of Maryland*Eastern District of North Carolina...
agreed to hear CWA's appeal in November 1984, and handed down its ruling in October 1985. In a 2-to-1 ruling, the appellate court upheld the district court's ruling. The 4th Circuit Court found that the district court had erred in applying the clear and convincing standard, but on the basis of a statutory interpretation of the NLRA and the duty of fair representation claim found that the district court had correctly concluded that the agency fee was being illegally spent on items not related to collective bargaining. CWA petitioned for a rehearing en banc
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...
, which was granted in April 1986. In a per curiam decision issued in September 1986, the 10 judges ruled 6-to-4 that the court had jurisdiction over the case on one or more grounds. The majority also held that the three-judge panel had ruled correctly, and held in favor of Beck again. CWA appealed again.
The U.S. Supreme Court granted certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
on May 31, 1987. In a surprising move, the U.S. Department of Justice
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
supported CWA's appeal. The Solicitor General
United States Solicitor General
The United States Solicitor General is the person appointed to represent the federal government of the United States before the Supreme Court of the United States. The current Solicitor General, Donald B. Verrilli, Jr. was confirmed by the United States Senate on June 6, 2011 and sworn in on June...
at the time, Charles Fried
Charles Fried
Charles Fried is a prominent American jurist and lawyer. He served as United States Solicitor General from 1985 to 1989. He is currently a professor at Harvard Law School.-Early life and education:...
, argued that the voluntary nature of collective bargaining agreements (including agency fee clauses) made the issue of coercion moot. Because states could and did ban agency fee agreements, there was no governmental action on which to base a constitutional claim against the union. And because Section 8(a)3 plainly requires uniform dues and fees (e.g., unions could not charge agency fee payers more nor less than regular members), the Justice Department felt Beck's claim was justified. Upset by the Justice Department's stand, Republican
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
Senators Jesse Helms
Jesse Helms
Jesse Alexander Helms, Jr. was a five-term Republican United States Senator from North Carolina who served as chairman of the Senate Foreign Relations Committee from 1995 to 2001...
, Dan Quayle
Dan Quayle
James Danforth "Dan" Quayle served as the 44th Vice President of the United States, serving with President George H. W. Bush . He served as a U.S. Representative and U.S. Senator from the state of Indiana....
, Steve Symms
Steve Symms
Steven Douglas Symms was a four-term congressman and two-term U.S. senator from Idaho. He was among the most conservative members of the Republican Party...
, and Strom Thurmond
Strom Thurmond
James Strom Thurmond was an American politician who served as a United States Senator. He also ran for the Presidency of the United States in 1948 as the segregationist States Rights Democratic Party candidate, receiving 2.4% of the popular vote and 39 electoral votes...
filed an amicus curiae
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
brief
Brief (law)
A brief is a written legal document used in various legal adversarial systems that is presented to a court arguing why the party to the case should prevail....
urging the Supreme Court to rule in Beck's favor.
The Beck case was argued before the Supreme Court on January 11, 1988.
At the time, however, there was a concern that the court could split and issue no ruling. Associate Justice
Associate Justice of the Supreme Court of the United States
Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...
Lewis F. Powell, Jr. had retired from the Supreme Court on June 26, 1987. President Ronald Reagan
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
nominated Judge Robert Bork
Robert Bork
Robert Heron Bork is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as Solicitor General, Acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit...
of the United States Court of Appeals for the District of Columbia to fill Powell's seat on July 1, but after a contentious nomination battle the U.S. Senate rejected Bork's nomination 58-to-42 on October 23. Six days later, President Reagan nominated Douglas H. Ginsburg
Douglas H. Ginsburg
Douglas Howard Ginsburg is a judge on the United States Court of Appeals for the District of Columbia Circuit. He was appointed to this court in October 1986 by President Ronald Reagan. He served as its Chief Judge from July 16, 2001 until February 10, 2008...
, Bork's fellow judge on the D.C. circuit court of appeals, for the Supreme Court. But Ginsburg withdrew his nomination eight days later after media reports that he had occasionally smoked marijuana as a law student and law professor. Reagan nominated Anthony Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
, a judge on the United States Court of Appeals for the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
, for the high court on November 11, 1987. Kennedy was unanimously confirmed on February 3, 1988. Kennedy had been unable to participate in oral argument in the Beck case, and Supreme Court tradition holds that a justice who has not participated in oral argument cannot participate in the decision a case (with only a few, rare exceptions).
Ruling
Associate Justice William J. Brennan, Jr.William J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
delivered the opinion of the Court, joined by Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
William Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
and Associate Justices Byron White
Byron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...
, Thurgood Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
, and John Paul Stevens
John Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
. Associate Justices Harry Blackmun
Harry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...
, Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
, and Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
joined in Parts I and II. Justice Blackmun filed a concurring opinion in part and a dissenting opinion in part, in which Justices O'Connor and Scalia joined. Associate Justice Anthony Kennedy took no part in the consideration or decision of the case.
The 20 workers sought relief on three claims: 1) That the agency fee was too high to cover only collective bargaining activities as authorized by NRLA Section 8(a)(3); 2) That the high agency fee breached the CWA's duty of fair representation; and 3) That the high agency fee violated the workers' First Amendment rights.
Justice Brennan first addressed the jurisdictional question that divided the 4th Circuit Court of Appeals and asserted court jurisdiction over both the duty of fair representation and constitutional challenges.
Brennan next turned to the workers' first two claims. The majority noted that NLRA Section 8(a)(3) contains two provisions which clearly permit agency fee agreements. For the majority, "The statutory question presented in this case, then, is whether this 'financial core' includes the obligation to support union activities beyond those germane to collective bargaining, contract administration, and grievance adjustment. We think it does not." The majority reviewed the Court's previous decision in Machinists v. Street and found it controlling. The majority further concluded that Section 8(a)(3) and Section 2, Eleventh of the Railway Labor Act were statutorily equivalent. The majority reviewed at length the legislative history of both the Railway Labor Act and the National Labor Relations Act to provide support for this conclusion, and to show why in each case Congress had approved of agency fee agreements. Relying on the Court's analysis of the Railway Labor Act in Street, the Supreme Court said CWA was not justified in concluding that Section 8(a)(3) permits the collection of agency fees in excess of the amount necessary to cover the costs of collective bargaining. The majority further found that the legislative history of the NLRA, the Taft-Hartley Act, and RLA showed that Congress intended to restrict agency fee agreements to cover collective bargaining alone and no other purposes.
Turning to the constitutional question, Brennan wrestled with the fact that "...in Railway Employees v. Hanson, 351 U.S. 225 (1956),
The Supreme Court affirmed the judgment of 4th Circuit Court of Appeals.
Dissent
Associate Justice Blackmun, joined by Justices O'Connor and Scalia, concurred with the majority's assertion of jurisdiction in Part I of the ruling and with the majority's decision in the breach of duty of fair representation claim in Part II, but dissented from Part III and the holding in Part IV. For Blackmun, the problem was that the majority had relied too heavily on Street, not utilized its traditional methods of statutory construction, and substituted a new method of statutory construction to "strain" to make Beck accord with Street:- Without the decision in Machinists v. Street, 367 U.S. 740 (1961), involving the Railway Labor Act (RLA), the Court could not reach the result it does today. Our accepted mode of resolving statutory questions would not lead to a construction of 8(a)(3) so foreign to that section's express language and legislative history, which show that Congress did not intend to limit either the amount of "agency fees" (or what the majority labels "dues-equivalents") a union may collect under a union-security agreement, or the union's expenditure of such funds. The Court's excessive reliance on Street to reach a contrary conclusion is manifested by its unique line of reasoning. No sooner is the language of 8(a)(3) intoned, than the Court abandons all attempt at construction of this statute and leaps to its interpretation over a quarter century ago of another statute enacted by a different Congress, a statute with a distinct history and purpose. See ante, at 744–745. I am unwilling to offend our established doctrines of statutory construction and strain the meaning of the language used by Congress in 8(a)(3), simply to conform 8(a)(3)'s construction to the Court's interpretation of similar language in a different later-enacted statute, an interpretation which is itself "not without its difficulties." Abood v. Detroit Board of Education, 431 U.S. 209, 232 (1977) (characterizing the Court's decision in Street). I therefore dissent from Parts III and IV of the Court's opinion.
Blackmun then applied a plain meaning construction of the statutory language to both the RLA and NLRA, and concluded that CWA had not violated the NLRA. The NLRB, Blackmun said, had not changed its policy on agency fees nor its justifications for its conclusions. Justice Blackmun pointed to the NLRB's decision in In re Union Starch & Refining Co. and Detroit Mailers Union No. 40, and noted that the Justice Department had adopted a similar view in its amicus curiae brief. Blackmun also chastised the majority for mis-stating the NLRB's conclusion in Teamsters Local 959:
- Contrary to the Court's suggestion, the NLRB has not embraced and then "repudiated" the view that, for purposes of § 8(a)(3), "periodic dues and initiation fees" mean only "those fees necessary to finance collective-bargaining activities." Ante, at 752, n. 7. Teamsters Local No. 959, 167 N. L. R. B. 1042 (1967), does not demonstrate otherwise. In Teamsters Local, the NLRB held that "working dues" designated to fund a union building program and a credit union were actually "assessments" not contemplated by the proviso to § 8(a)(3). Id., at 1044. The Board found that the union itself regarded the levy as a "temporary assessment," clearly distinct from its "regular dues." Ibid. Moreover, because the financing for the programs was constructed in such a way that the union treasury might never have received 90% of the moneys, the Board concluded that the "working dues" were actually "special purposes funds," and that "the support of such funds cannot come from 'periodic dues' as that term is used in § 8(a)(3)." Ibid. In Detroit Mailers, the NLRB distinguished such assessments from "periodic and uniformly required" dues, which, in its view, a union is not precluded from demanding of nonmembers pursuant to § 8(a)(3). 192 N. L. R. B., at 952.
Blackmun noted that "the majority cannot cite one case in which the Board has held that uniformly required, periodic dues used for purposes other than 'collective bargaining' are not dues within the meaning of §8(a)(3).
Like the majority, Blackmun too extensively reviewed the history of the RLA and NLRA but rejected the majority's reading of those histories. The Supreme Court had previously held that the RLA was not identical to the NLRA, he wrote, and had cautioned lower courts and appellants that they should draw parallels between the two statutes very carefully. The majority, Blackmun concluded, had not made a careful comparison this time, and therefore its conclusions based on the similarities between the RLA and NLRA should be rejected.
Critiques of the Beck ruling
A number of criticisms have been made of the Beck ruling. These critiques include those made by supporters of the decision who feel the Supreme Court did not go far enough, and critiques made by those who feel the Court's ruling was wrongly decided.A number of legal scholars who support the outcome of the ruling nonetheless criticize the Supreme Court's approach to Beck's First Amendment challenge. These scholars strongly criticize the Court for not deciding the case on First Amendment grounds, and argue that a constitutional ruling on agency fee issues would provide for clearer decisions, a sounder basis for workers to challenge agency fee calculations, and enhanced free speech rights not only for dissenting workers but for all employees.
A second major criticism of the case is that the Court did not clearly define what the First Amendment violation was. The Supreme Court has a long-standing doctrine of not ruling on a statute's constitutionality if a case may be decided on statutory grounds. Subsequently, the Beck court's discussion of First Amendment issues was perfunctory, acknowledging that there might be grounds for a First Amendment challenge but refusing to discuss the issue further. This has generated confusion among legal scholars and workers as to what First Amendment challenges may be brought. For example, critics have pointed out that a claim under the First Amendment can only be brought when there is state action
State actor
In United States law, a state actor is a person who is acting on behalf of a governmental body, and is therefore subject to regulation under the United States Bill of Rights, including the First, Fifth and Fourteenth Amendments, which prohibit the federal and state governments from violating...
, as opposed to private action. The Supreme Court's early agency fee decisions (Hanson, Street, and Ellis) found that state action occurred under the Railway Labor Act because the Act prohibited union shops. Yet, although the Court went to great lengths to identify the similarities between the RLA and NLRA in Beck, the Court (in dicta
Obiter dictum
Obiter dictum is Latin for a statement "said in passing". An obiter dictum is a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the court's decision...
) refused to decide whether state action had occurred under the NLRA. Legal scholars have pointed out that the Beck Court cited two cases which did find state action under the NLRA, but did not make any determination in Beck. One scholar has concluded that the Court's tests for determining state action are not useful enough to determine the issue. Adding to the confusion is that the Supreme Court has never made it clear how to apply a First Amendment analysis to labor law. The Court and legal scholars point out that labor law is considered unique in the American statutory and constitutional framwork, which may mean that traditional First Amendment analyses do not apply. "
Strict scrutiny
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...
standard) is inappopriate to apply to labor law. Many of these analyses conclude that the Beck court should have clarified these issues, and absent such clarification the First Amendment rights of workers remain unprotected.
Third, some legal scholars have criticized the ruling for not establishing a right which can be successfully exercised in the real world. The Supreme Court itself recognized in Abood that implementing its limitations on agency fees would be difficult to administer, and in dicta suggested that further rulings would clarify its thinking. But the Beck decision did not provide this clarification. The ruling did not address whether or how unions should inform workers of their Beck rights, what charges are "germane" to collective bargaining, or what remedies non-members have if their rights are violated. Because of this confusion, some lower courts have gone so far as to approve schemes whereby union members may assert their Beck rights only during limited "window periods" (in apparent contravention of Pattern Makers) and that Beck objectors renew their objection annually (in apparent contravention of General Motors). A U.S. government report has concluded that it is uncertain whether notifying employees of their Beck rights but not other rights available under the NLRA would effectively protect workers' rights.
Other observers conclude that Beck was wrongly decided. The reasons for reaching this conclusion vary, however. Some critics, in reviewing the Supreme Court's First Amendment jurisprudence, have found that there is no simply no First Amendment burden imposed by an agency fee which includes charges not related to collective bargaining. Others conclude that while there may be some infringement on free speech, the voluntary nature of collective bargaining does not raise it to the level of state action under existing Supreme Court doctrine. Many conclusions about state action rely on the fact that the NLRA grants unions the right to charge agency fees, thus making the union a state actor. But scholars critical of Beck point to the Court's ruling in Jackson v. Metropolitan Edison Co.
Jackson v. Metropolitan Edison Co.
Jackson v. Metropolitan Edison Co., 419 U.S. 345 , is an administrative law case of the Supreme Court of the United States holding that extensive state regulation of a public utility does not transform its acts into state action that is reviewable by a federal court under the Fourteenth Amendment...
, where the Supreme Court held that even a governmental grant of power is insufficient to create state action. At least one commentator has concluded that the Court's First Amendment analysis in Beck is unbalanced because it fails to take into account the associational liberties also protected by the First Amendment.
Fifth, some analyses conclude that the Court's method statutory interpretation in the Beck is flawed. Justice Blackmun made this claim in his dissent (as noted above). Some legal commentators agree, noting that the ruling rejects the Court's well-settled doctrines of statutory construction, which leads to a misinterpretation of Congress' legislative intent.
Sixth, critics have argued that the Beck Court misapplied its duty of fair representation doctrine. One legal commentator has concluded that the Supreme Court's duty of fair representation decisions do not lead to the conclusion that agency fees can be restricted solely to collective bargaining purposes. Another has argued that the modern labor unions can only meet their duty to fairly represent workers if they engage in lobbying and legislative activity, a conclusion which undercuts the Beck court's decision as well.
Seventh, some scholars point out that the Beck ruling may lead to unanticipated outcomes. At least one commentary on Beck concludes that Beck rights, if successfully implemented, may lead large numbers of workers to resign from a union during a strike. These workers will be able to continue to work during a strike (incurring none of the disadvantages a strike brings), and yet will still be able to enjoy the benefits of collective bargaining (assuming the strike is successful and an agreement is negotiated). The strike is the most powerful weapon unions have, and undermining the union's ability to strike would put labor unions at a distinct disadvantage in collective bargaining. The NLRB and Supreme Court have acknowledged the role that agency fee payers can play in undermining strikes. In NLRB v. Textile Workers Union, 409 U.S. 213 (1972), the Supreme Court ruled that once a union member had resigned, the union could not punish that worker for crossing picket lines. And in Pattern Makers' League v. NLRB, (as noted above) the Court said unions must permit members to resign at any time. Decisions like these have informed the NLRB's rulings on the issue as well. The Board found that an employer did not commit an unfair labor practice
Unfair labor practice
In United States labor law, the term unfair labor practice refers to certain actions taken by employers or unions that violate the National Labor Relations Act and other legislation...
when it distributed notices to employees prior to a strike that outlined an employee's rights during a strike (including the right to become an agency fee payer and cross picket lines). The Board also held that, once a single employee has inquired about their right to become an agency fee payer, it is legal for an employer to notify all workers about this right. But in the absence of an employee-initiated iniquiry, it is not, the Board says, legal for employers to approach striking workers and ask them to become agency fee payers. The negative implications of widespread worker resignation from unions prior to or during a strike is clear, some argue. This may be changing, however, as more unions turn away from strikes and toward comprehensive campaign
Comprehensive campaign
A comprehensive campaign is labor union organizing or a collective bargaining campaign with a heavy focus on research, the use of community coalition-building, publicity and public pressure, political and regulatory pressure, and economic and legal pressure in addition to traditional organizing...
s. It is also unclear how Beck may impact dues checkoff (an agreement between the employer, union, and employee under which the employer agrees to deduct union dues directly from the employee's paycheck and turn it over to the union). In 1991, the NLRB held that dues checkoff agreements create an obligation to pay dues in the same way that becoming a union member does. It is possible that Beck and subsequent rulings could also undermine dues checkoff agreements.
Further Supreme Court rulings
The Beck case created widespread confusion about how best to implement the rights the Supreme Court identified in its ruling. The Supreme Court has addressed the agency fee issue six times in the two decades since its holding in Beck, each ruling considering additional union expenditures which may or may not be charged to non-union members.The Court first revisited the issue in Lehnert v. Ferris Faculty Association in 1991. The Court was "sharply divided", writing "four opinions that were supported in whole or in part by varying numbers of Justices" and citing divergent reasons for supporting those parts of the decision they supported. "
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
issues into consideration and because of the unique nature of the union's dues structure. Writing for the majority, Justice Blackmun established a three-prong test for determining the constitutionality and statutory legality of agency fee charges in public employee bargaining units: 1) The charges must be "germane" to collective bargaining activity; 2) The charges must not "significantly" burden the non-members' free speech rights; and 3) Charges must be justified by the need for labor peace or to avoid the free rider problem
Free rider problem
In economics, collective bargaining, psychology, and political science, a free rider is someone who consumes a resource without paying for it, or pays less than the full cost. The free rider problem is the question of how to limit free riding...
. Acceptable charges included that part of affiliation fees which are spent on collective bargaining, collective bargaining expenditures destined for other states, expenditures for national union publications insofar as they support collective bargaining, information services and other miscellaneous items that are not political nnor public in nature and which benefit of all workers even though they do not directly impact the bargaining unit, expenditures to attend union meetings and conventions, and strike expenses (whether the strike is legal or not). Non-chargeable expenses include: Lobbying, electoral, or other political activities not directly related to contract bargaining or implementation; political or public activities aimed at winning a greater budget for the collective bargaining unit; litigation or publications reporting on litigation that does not concern directly concern the bargaining unit; and public relations efforts (including informational picketing, media purchases, signs, posters, and buttons) designed to enhance public respect for the workers' profession. At least one legal scholar believes the Lehnert decision shifted away from the Court's traditional rationale that agency fees must have a strong link to collective bargaining purposes:
- Subtly, but with significant impact..., the Supreme Court in Lehnert shifted away from its previous emphasis on the nexus between the expense and collective bargaining. Unlike its predecessors, Lehnert did not stress that the benefit to the unit must be in the area of collective bargaining or labor-management issues. Its statement that for an expense to be charged "there must be some indication that the payment is for services that may ultimately enure to the benefit of the members of the local union" implies that the benefit to the worker need not be in the form of increased leverage against the employer.
Adding additional confusion, the Lehnert court also concluded that even charges germane to collective bargaining were impermissible if they burdened First Amendment rights too heavily in order to achieve the policy outcomes intended by Congress (although the Court did not identify what constituted an impermissible level of burden). The impact of Lehnert, however, appears minimal. At least one legal scholar refused to list Lehnert among the past decade's most important cases in the public education law. Both courts and legal scholars have questioned whether the judicial system should be "drawn into this micro-level of dispute resolution".
Other Supreme Court rulings since Lehnert have focused more narrowly on technical issues. In Air Line Pilots Association v. Miller, 523 U.S. 866 (1998), the Supreme Court addressed the issue of whether non-members must use the union's arbitration process in order to challenge the calculation of agency fees. In a 7-to-2 decision, the Court held that agency fee payers did not have to exhaust the union's challenge procedures. The same year, the Court addressed the issue of whether a union committed an unfair labor practice if its collective bargaining agreement contained the original NLRA language on union shops but no additional information (such as information about the Supreme Court's rulings in Beck and other cases). A unanimous Supreme Court held in Marquez v. Screen Actors Guild, 525 U.S. 33 (1998) that a union did not breach its duty of fair representation by merely including the language of the NLRA, as amended. The Marquez Court relied heavily on its ruling in NLRB v. News Syndicate Co., 365 U.S. 695 (1961), where it had previously held that the NLRB had no authority invalidate a contract clause solely because the clause mirrored statutory language but did not go further to advise members to not violate the law. About a decade later, the high court revisited the agency fee issue three more times. It upheld in Davenport v. Washington Education Association, 551 U.S. 177 (2007), a Washington state ballot initiative which required public employee unions to obtain each member's and nonmember's prior authorization before spend their dues or agency fees for election-related purposes. The decision was moot even before it was handed down, because the Washington State Legislature
Washington State Legislature
The Washington State Legislature is the state legislature of the U.S. state of Washington. It is a bipartisan, bicameral body, composed of the lower Washington House of Representatives, composed of 98 Representatives, and the upper Washington State Senate, with 49 Senators.The State Legislature...
had already changed the law to make it easier for unions to comply. The ruling was very narrowly decided, however, leading to much criticism. "Correctly understood, this decision promises little and delivers even less because it fails to deal decisively and comprehensively with the issues that both earlier private sector and public sector union dues disputes illuminated but failed to settle." Other legal scholars expressed dismay that the Davenport Court did not confront the First Amendment issues raised by the case. A year later, in Locke v. Karass
Locke v. Karass
Locke v. Karass, No. 07-610 , is a court case in which the Supreme Court of the United States held that the Constitution permits the local chapter of a labor union to charge a "service fee" to non-members to cover non-local litigation expenses if the expenses are "appropriately related to...
, 07-610 (2008), the Supreme Court held that it was not unconstitutional for a local union to charge nonmembers for national litigation expenses unrelated to local collective bargaining activities. In 2009, the Supreme Court held in Ysursa v. Pocatello Education Association, 07-869 (2009), that a state's refusal to agree to dues checkoff did not abridge a union's First Amendment rights.
Regulatory and NLRB actions
On April 13, 1992, PresidentPresident of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
George H. W. Bush
George H. W. Bush
George Herbert Walker Bush is an American politician who served as the 41st President of the United States . He had previously served as the 43rd Vice President of the United States , a congressman, an ambassador, and Director of Central Intelligence.Bush was born in Milton, Massachusetts, to...
issued an executive order, E.O. 12800, that required contractors
General contractor
A general contractor is responsible for the day-to-day oversight of a construction site, management of vendors and trades, and communication of information to involved parties throughout the course of a building project.-Description:...
doing business with the federal government to provide their non-union employees with notice of their Beck rights. Executive branch officials estimated that about 2 million to 3 million (10.5 percent to 15.8 percent) of the 19 million workers represented by labor unions are nonmembers, and that NLRB officials had issued more than 300 citations accusing unions of not notifying their members of their Beck rights. Labor leaders dismissed the Executive Order, claiming they already met the requirements set down by the Supreme Court. The Bush administration estimated the Executive Order would keep $1.2 billion to $2.4 billion a year from being collected by labor unions. The administration also said it would order the U.S. Department of Labor
United States Department of Labor
The United States Department of Labor is a Cabinet department of the United States government responsible for occupational safety, wage and hour standards, unemployment insurance benefits, re-employment services, and some economic statistics. Many U.S. states also have such departments. The...
(DOL) to issue new regulations that would require unions to report in far greater detail the amount of money they spend on political activities, lobbying, and collective bargaining. Bush also asked Congress to enact legislation formally encoding the Beck ruling into federal labor law. Unions and Democrats
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...
derided the action as election year politicking, while right-to-work advocates hailed it as long overdue. At least one legal scholar criticized the order for not doing enough to implement the Beck decision, and for putting the onus of notification on the employer rather than the union.
The Clinton, Bush, and Obama administrations have each taken action to either rescind or reinstate this Executive Order. President Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
issued Executive Order 12836 on February 1, 1993, which revoked Executive Order 12800. The Labor Department subsequently withdrew its Bush-era regulations on union financial reporting on December 21, 1993. President George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
then issued Executive Order 13201 on February 16, 2001, largely reinstating Executive Order 12800 and ordering DOL to re-issue its regulations. A coalition of unions sued to enjoin enforcement of the Executive Order. The United States district court for the District of Columbia overturned the Executive Order on the grounds that the NLRA gave the NLRB exclusive jurisdiction over Beck rights, but the D.C. Circuit Court of Appeals
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
reversed, the Supreme Court refused to hear the case, and Executive Order 13201 went into effect. The last action was taken on January 30, 2009, when President Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
issued Executive Order 13496, revoking E.O. 13201 and the DOL regulations yet again.
The National Labor Relations Board (NLRB) struggled to implement the Court's holding in Beck. In 1989, the National Right to Work Committee polled NLRB offices nationwide, posing as workers and asking about the requirement to pay union dues. The group found that Board agents and other staff at 22 of 29 offices gave the wrong information. Although the NLRB initially dismissed the report, within a few weeks the agency admitted its errors and ordered all its regional offices to review recent developments in labor law and provide accurate information on agency fee rights.
In 1992, for only the second time in its history, the National Labor Relations Board undertook a regulatory rulemaking
Rulemaking
In administrative law, rulemaking refers to the process that executive and independent agencies use to create, or promulgate, regulations. In general, legislatures first set broad policy mandates by passing statutes, then agencies create more detailed regulations through rulemaking.By bringing...
aimed at resolving the divergent, complex issues raised by the Beck decision. The proposed rulemaking was announced in May 1992, and the proposed rule issued on September 22, 1992. But after three and a half years of inaction on the proposed regulation, the Board withdrew the rule on March 19, 1996—concluding that it could proceed faster through its more traditional case-by-case approach.
Shortly after the labor board published its proposed rule, it issued its first ruling addressing the issues raised in the Beck decision. In Electrical Workers IUE, Local 444 (Paramax Systems), 311 NLRB 1031 (1993), the Board held that Beck imposed a duty on unions to provide information on members' and nonmembers' Beck rights via the mail at least once a year, whether an employee has requested the information or not. But over the next several years, the NLRB ruled on almost no other Beck cases even though nearly 400 complaints had been brought before the Board.
Finally, the Board consolidated 28 Beck cases under California Saw & Knife Works, 320 NLRB 224 (1995). The International Association of Machinists and Aerospace Workers
International Association of Machinists and Aerospace Workers
The International Association of Machinists and Aerospace Workers is an AFL-CIO/CLC trade union representing approx. 646,933 workers as of 2006 in more than 200 industries.-Formation and early history:...
(IAM) provided a Beck notification to each member yearly via its monthly magazine, and required members to exercise these rights once a year during a window period. The Board held that the union had committed an unfair labor practice by failing to provide a Beck rights notice to new members and by not providing a Beck rights notice to new members who were resigning from the union but had not yet received the annual notice, but did not commit a ULP by failing to notify resigning union members of their Beck rights at the time of their resignation. The Board distinguished its holding in California Saw from its prior ruling in Paramax Systems, and found the window period (as well as other restrictions on the submission of resignation and objector status) to be an unfair labor practice. The Board rejected numerous challenges to the way agency fees were calculated, challenges made, and expenditures verified. The California Saw decision was criticized for only applying to nonmembers. The NLRB addressed the Beck rights of members shortly thereafter in United Paperworkers International Union, Local 1033 (Weyerhauser Paper Co.), 320 NLRB 349 (1995). In that case, the NLRB upheld its ruling in California Saw and said that yearly notice to current members, including the rights outlined by the courts and NLRB (not just the statutory language of the NLRA), was all that was required of unions.
Two years later, the NLRB decided on the preferred remedy that should be imposed where a union failed to inform employees of their Beck rights. In Rochester Manufacturing Co., 323 NLRB 260 (1997), the Board ordered that the union return to the status quo ante
Status quo ante
Status quo ante is Latin for "the way things were before" and incorporates the term status quo. In law, it refers to the objective of a temporary restraining order or a rescission in which the situation is restored to "the state in which previously" it existed...
, give all workers their Beck rights notice, give each all workers the opportunity to submit agency fee calculation objections for every dues collection period at issue, and the reimburse each objecting employee.
From 1994 to 1998, the NLRB issued 18 consolidated or single Beck cases.
Legislative efforts
The Supreme Court's Beck decision generated a great deal of legislative activity at both the federal and state levels.Congressional action
The first Congressional attempt to codify the Beck decision into law occurred a year after the Beck decision. RepresentativeUnited States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
Tom DeLay
Tom DeLay
Thomas Dale "Tom" DeLay is a former member of the United States House of Representatives, representing Texas's 22nd congressional district from 1984 until 2006. He was Republican Party House Majority Leader from 2003 to 2005, when he resigned because of criminal money laundering charges in...
introduced H.R. 2589, the "Workers' Political Rights Act of 1989," on June 8, 1989. The bill, which died
Table (parliamentary)
In parliamentary procedure, a motion to table has two different and contradictory meanings:*In the United States, table usually means the motion to lay on the table or motion to postpone consideration; a proposal to suspend consideration of a pending motion...
in committee
United States Congressional committee
A congressional committee is a legislative sub-organization in the United States Congress that handles a specific duty . Committee membership enables members to develop specialized knowledge of the matters under their jurisdiction...
, would have amended the Federal Election Campaign Act
Federal Election Campaign Act
The Federal Election Campaign Act of 1971 is a United States federal law which increased disclosure of contributions for federal campaigns. It was amended in 1974 to place legal limits on the campaign contributions...
of 1971 to: 1) Add union political committees to the list of political action committee
Political action committee
In the United States, a political action committee, or PAC, is the name commonly given to a private group, regardless of size, organized to elect political candidates or to advance the outcome of a political issue or legislation. Legally, what constitutes a "PAC" for purposes of regulation is a...
s regulated by the Federal Election Commission
Federal Election Commission
The Federal Election Commission is an independent regulatory agency that was founded in 1975 by the United States Congress to regulate the campaign finance legislation in the United States. It was created in a provision of the 1975 amendment to the Federal Election Campaign Act...
; 2) Require unions to give each worker separate, yearly Beck notices; 3) Require unions to give each worker Beck notices when they join the union and when they resign from the union; 4) Require unions to undergo independent audit
Audit
The general definition of an audit is an evaluation of a person, organization, system, process, enterprise, project or product. The term most commonly refers to audits in accounting, but similar concepts also exist in project management, quality management, and energy conservation.- Accounting...
s each year to verify the calculation of agency fees; and 5) Require unions to provide members detailed information on the calculation of agency fees.
Additional action followed over the next several years. In July 1990, Senator Orrin Hatch
Orrin Hatch
Orrin Grant Hatch is the senior United States Senator for Utah and is a member of the Republican Party. Hatch served as the chairman or ranking member of the Senate Judiciary Committee from 1993 to 2005...
proposed an amendment to the "Senatorial Election Campaign Act of 1989" (S. 137), a major campaign finance reform
Campaign finance reform
Campaign finance reform is the common term for the political effort in the United States to change the involvement of money in politics, primarily in political campaigns....
bill then under consideration in the U.S. Senate. The Hatch amendment was defeated on a close vote of 59-to-41. Senator David Boren then proposed a less restrictive amendment to S. 137, which was adopted by a vote of 57 to 43. Although the amended bill passed the Senate on August 1, 1990, it was never referred to the House and died at the end of the congressional session. DeLay reintroduced his Beck bill in 1991, where it died again without action. In 1996, Representative Harris W. Fawell
Harris W. Fawell
Harris W. Fawell was a Republican member of the Illinois Senate from 1963 to 1977, and was a delegate to the Republican National Convention in 1968 and 1988. In 1976 Harris W. Fawell ran unsuccessfully for the Illinois Supreme Court. In 1984 he was elected to the U.S...
introduced the "Worker Right to Know Act" (H.R. 3580), a bill to amend the NLRA to ban unions from charging any worker (member or nonomember) fees unrelated to collective bargaining, contract administration, or grievance adjustment unless the worker gave the union explicit, annual consent. Hearings on the legislation occurred, but the bill died in committee. In 1997, Senator Paul Coverdell
Paul Coverdell
Paul Douglas Coverdell was a United States Senator from Georgia, elected for the first time in 1992 and re-elected in 1998, and director of the Peace Corps from 1989 until 1991...
introduced a bill (S. 497, the "National Right to Work Act of 1997") which would have banned all compulsory union membership. Introduced in the House as well, both bills died in committee.
The last major push for congressional action came in 1996–1997. Several bills had been introduced in both the House and the Senate. The most prominent was Senator Don Nickles
Don Nickles
Donald Lee Nickles is an American businessman and politician who was a Republican United States Senator from Oklahoma from 1981 until 2005. He was a fiscal and social conservative.-Early life:...
' "Paycheck Protection Act," which Senate Majority Leader
Party leaders of the United States Senate
The Senate Majority and Minority Leaders are two United States Senators who are elected by the party conferences that hold the majority and the minority respectively. These leaders serve as the chief Senate spokespeople for their parties and manage and schedule the legislative and executive...
Trent Lott
Trent Lott
Chester Trent Lott, Sr. , is a former United States Senator from Mississippi and has served in numerous leadership positions in the House of Representatives and the Senate....
re-introduced in 1998. The issue became caught in campaign finance reform legislation that year. Section 501 of the "Bipartisan Campaign Reform Act of 1997" (BRCA) merely codified the Beck decision, but the "Paycheck Protection Act" went much further and required all workers to affirm on an annual basis whether their dues could be used for political purposes. Senator Lott offered the Nickles bill as an amendment to the BRCA, which many Democrats (and some Republicans) saw as a poison pill amendment
Wrecking amendment
In legislative debate, a wrecking amendment is an amendment made by a legislator who disagrees with the principles of a bill and who seeks to make it useless rather than directly opposing the bill by simply voting...
. Under procedures adopted by the Senate, Senators would need to reject the Lott amendment before voting on the BRCA. But with Republicans unwilling to vote against the amendment (which was popular with their conservative base), the Lott amendment was added to the BRCA and the Beck amendment died along with the BRCA after a number of other procedural votes.
Several bills were offered in Congress over the next few years to either ban agency shop agreements or to adopt various provisions of the 1997 Nickles bill, but all of them died in committee. An analysis of the major bills under congressional consideration from 1988 to 1997 found, however, that nearly all of them suffered from significant legal flaws, and none went far enough in protecting workers' Beck rights.
State actions
Many states have proposed or passed legislation to address the Supreme Court's ruling in Beck for public employee unions. The National Labor Relations Act does not cover state or local public employees, and leaves it up to each state to grant these workers collective bargaining rights. By 2000, 28 states and the District of Columbia had enacted a collective bargaining law for some or all of their public employees. "Paycheck protection" acts—legislation requiring public employee unions to obtain permission from all workers on an annual basis in order to collect dues or fees for any purpose not germane to collective bargaining—were introduced in a number of state legislatures or became ballot initiatives. In 1992, voters in Washington state approved Initiative 134,the nation's first paycheck protection act. Similar ballot initiatives and legislation appeared in 26 states in 1998. The battle in California over that state's initiative, Proposition 226, was particularly important because supporters of the initiative believed a win there would lead to adoption of the proposal in many more states. But despite the support of GovernorGovernor of California
The Governor of California is the chief executive of the California state government, whose responsibilities include making annual State of the State addresses to the California State Legislature, submitting the budget, and ensuring that state laws are enforced...
Pete Wilson
Pete Wilson
Peter Barton "Pete" Wilson is an American politician from California. Wilson, a Republican, served as the 36th Governor of California , the culmination of more than three decades in the public arena that included eight years as a United States Senator , eleven years as Mayor of San Diego and...
and a lead of roughly 35 points in the polls in April, the initiative went down to defeat 52-to-48 on election day in June after a fierce battle.
The defeat of the initiative had a significant effect nationwide. Similar initiatives and legislation were defeated in 29 states by 2002. By September 2009, only five states had adopted the proposal via initiative or legislation (Idaho, Michigan, Ohio, Washington, and Wyoming), while a sixth (Colorado) had done so via executive order.
Legislative prospects
Prospects for addition initiatives and legislation at the federal and state level appear mixed as of 2009. Former Federal Election Commission Chair Bradley A. SmithBradley A. Smith
Bradley A. Smith is a professor at Capital University Law School, who was Commissioner, Vice Chairman and Chairman of the Federal Election Commission between 2000 and 2005 and is best known for his writing and activities opposing campaign finance regulation.-Academic career and influence:A...
(who opposes compulsory unionism) has argued that even the most stringent laws are unlikely to have any impact, as the number of agency fee payers is small compared to the number of union members. At least one legal scholar has questioned the constitutionality of paycheck protection laws, while another, detailed analysis of the Washington state effort has concluded that instead of decreasing the amount of union dues available for political expenditures paycheck protection actually increased it (from approximately $630,000 to approximately $780,000) as unions shifted member dues internally to account for the agency fees going toward collective bargaining.
See also
- List of United States Supreme Court cases, volume 487
- List of United States Supreme Court cases
- Lists of United States Supreme Court cases by volume
- List of United States Supreme Court cases by the Rehnquist Court
External links
- Full text of the decision courtesy of Findlaw.com
- Agency Fee/Fair Share Information from the American Federation of TeachersAmerican Federation of TeachersThe American Federation of Teachers is an American labor union founded in 1916 that represents teachers, paraprofessionals and school-related personnel; local, state and federal employees; higher education faculty and staff, and nurses and other healthcare professionals...
- Sample Beck notice from the United Auto WorkersUnited Auto WorkersThe International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, better known as the United Auto Workers , is a labor union which represents workers in the United States and Puerto Rico, and formerly in Canada. Founded as part of the Congress of Industrial...