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Unions Told to Stop Making Non-Members Pay for Lobbying

April 16, 2019
NLRB and its General Counsel also seek to enforce a Supreme Court ruling unions try get around.

Unions face another blow to their political power due to a recent decision by the National Labor Relations Board (NLRB) ending the union practice of siphoning off non-member dues to fund lobbying efforts

In a separate action, the NLRB counsel issued a memorandum that explains in detail how unions should handle any dues they charge employees who have chosen not to be union members.

The board lobbying costs decision impacts private sector employees who have chosen not to join a union. It is similar to a ruling late last year by the U.S. Supreme Court holding that it was illegal to require government employees to pay for the political activities of public sector unions.

This wasn’t the first time the Supreme Court grappled with the issue of diversion of dues to what it deemed non-core union activities. In 1988, in Communications Workers of America v. Beck, the court held that while workers subject to a union security clause or dues checkoff may forego union membership, the union can charge what are called nonmember objectors for costs for core union activities such as collective bargaining, contract administration and grievance processing.

This ability of non-union members who are charged dues to exclude non-core costs from their payments later became termed “Beck rights,” and individual cases involving their application have been brought before the board over the past 40 years. NLRB administrative law judges in the past have applied the Beck standard to union costs only on a case-by-case basis

The March 1 board decision has changed all that. The NLRB was acting on complaints raised by former members of the United Nurses & Allied Professionals Union who work in a private sector hospital. The nurses asserted that their Beck rights were violated by the union when it used their dues for political activities.

The NLRB agreed, holding that lobbying is not part of the union’s collective bargaining duties. As a result, unions now cannot force nonmember Beck objectors to fund their political lobbying efforts.

“We believe that relevant Supreme Court and lower court precedent compels holding lobbying costs are not chargeable as incurred during the union’s performance of statutory duties as the objectors’ exclusive bargaining agent,” the board stated. “Lobbying activity is not a representational function simply because the proposed legislation involves a matter that may also be the subject of collective bargaining.”

Verification Required

The NLRB also held that a union is required to provide Beck objectors with independent verification of any union audit of chargeable and nonchargeable expenses—separated into categories indicating where the nonmember objectors’ fees can and cannot be assigned.

It is no longer enough for unions to offer assurances that union expenses have been reviewed. Private-sector unions are required to provide Beck objectors with financial information independently verified by an auditor.

In the United Nurses decision, the board also applied both its lobbying expense and the audit verification requirements retroactively. As a result, part of the remedy granted in the nurses case is that the union reimburse all similarly situated employees the amount of dues collected for lobbying activities, with interest, and to provide them with appropriate verification of its expenses.

“The board’s decision puts the issue of nonmember Beck objectors’ rights to have a say in how their dues money is spent front and center and follows a trend of recent cases expanding similar individual employee rights in the public sector,” observes Valerie L. Weiss, an attorney with law firm Ogletree Deakins.

As the result of this decision nonmember employees now have greater access to verified union financial information and how their dues money is spent, she stresses. “Unions not only have to disclose detailed financial information when workers subject to a union security clause or dues checkoff provision exercise their Beck rights, but they must also provide individual employees with verification that the union’s financial information has been independently audited.”

In recent decades, unions have not been at all shy about using their employee dues to influence political officials and public policy. As a result of the NLRB decision, it’s likely that Beck objectors and employees everywhere will reevaluate whether they want their hard-earned dues money spent on organized labor’s political lobbying activates, notes Weiss.

Employees who may not agree with political actions taken by their union leaders in Washington, D.C., now have the right to determine whether such activities are an appropriate use of their money.

“The board’s decision in United Nurses could significantly impact the continued financial viability of private-sector unions and their ability to engage in lobbying and political activities,” Weiss suggests, although that remains to be seen.

Union Duties Spelled Out

In a separate matter, NLRB general counsel Peter Robb issued a memorandum to the board’s regional staff describing how they should enforce unions’ obligations to employees who have chosen to become nonmembers.

The employees must be given sufficient information to intelligently decide whether to object, and be informed about any internal union procedures for filing objections. These notices must be provided directly to an employee concurrently with the union’s first attempt to collect dues from the person and not just hidden in a union publication the employees might not see.

Similarly, the union’s separate obligation to provide an annual notice to represented employees of their Beck rights must be reasonably prominent and not “hidden in a lengthy publication.”

Under current law, the union only needs to inform employees of the percentage of their reduction if they decide to become Beck objectors. “It is obvious that employees will be better able to make informed decisions about whether to become Beck objectors if they know the amount of savings that will result from that decision. It should not be burdensome for unions to provide that figure,” Robb points out.

Robb also took aim at a union practice of preventing employees from opting out of a portion of their dues by creating a calendar obstacle course. This frequently requires that an employee must submit a revocation request 60-75 days before the union contract expires. In Robb’s view, such windows may eliminate or cut short an employee’s right to revoke at contract expiration and are invalid under federal labor law.

The NLRB general counsel also believes that requiring certified mail from the employee, or that the union sign for the certified mail for the request to be valid, restrains employees’ rights to revoke dues check-off authorizations.

Another obstacle unions sometimes employ is setting an arbitrary period outside of which requests cannot be filed—and then hiding the dates from the employees. Robb declares that “the union must either inform the employee of the specific next period where revocation can be effectuated or inform the employee that the request will be honored at the next available revocation period and that failure to do so violates a union’s duty of fair representation.”

This represents only a minimal burden on the union, the general counsel believes. “To determine the correct window period to deny the revocation request will help avoid disputes over whether the revocation dates were clearly known to the employee and will be of great benefit to employees,” he says.

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