Labor Law Updates (submitted by Raymond J. LaJeunesse, Jr., Staff Attorney, National Right to Work Legal Defense Foundation, Inc., 8001 Braddock Rd., Suite 600, Springfield, VA 22160

(703) 321-8510 or (800) 336-3600, FAX (703) 321-9319)

Labor-Management Reporting and Disclosure Act (LMRDA). Congress enacted the LMRDA in 1959 to protect various rights and interests of union members, including freedoms of speech and assembly in union affairs and due process in disciplinary proceedings, against abuses by unions and their officials. In addition, the LMRDA requires unions to inform their members about the Act's provisions. The International Association of Machinists gave its members such notice when the LMRDA was passed in 1959, but has not done so since. On January 27, 2000, the United States Court of Appeals for the Fourth Circuit held that this was insufficient under the Act, because the notification duty is "continuous": "Effective notice . . . requires at a minimum that each individual, soon after obtaining membership, be informed about the provisions of the LMRDA." Thomas v. Machinists, 163 L.R.R.M. (BNA) 2324, http://www.law.emory.edu/4circuit/jan2000/991621.p.html (4th Cir. Jan. 27, 2000).

Keeping with the theme of informed workers, there was a recent post-Beck decision of note. In Communications Workers v. Beck, 487 U.S. 735 (1988), the Court ruled that under the National Labor Relations Act nonunion employees required to pay union "agency fees" as a condition of employment have a right to object and pay only that portion of union dues attributable to collective bargaining, contract administration, and grievance adjustment. This decision has never been fully (or even close-to-fully) implemented, particularly by the NLRB. However, on February 22, 2000, reversing the National Labor Relations Board, the United States Court of Appeals for the District of Columbia Circuit held, in a case brought by National Right Work to Work Legal Defense Foundation attorneys, that the duty of fair representation requires a union to inform all new employees and agency fee payors what percentage of dues they would pay if they become Beck objectors and to provide all objectors with "a detailed explanation of how the union calculated" that percentage, including an explanation of "how its affiliates used the money" paid over to them. Penrod v. NLRB, No. 99-1121, http://pacer.cadc.uscourts.gov/common/opinions/200002/99-1121a.txt (D.C. Cir. Feb. 22, 2000).

Most, if not all, unions require nonunion employees to object annually during a narrow "window" period if they want to exercise their "Beck rights." However, in Shea v. Machinists, 154 F.3d 508 (5th Cir. 1998), a case brought under the Railway Labor Act (RLA) by National Right to Work Legal Defense Foundation attorneys, the court held that an annual objection requirement violates the employees' First Amendment rights and breaches the duty of fair representation. On February 1, 2000, Foundation attorneys filed a follow-up nationwide class action suit against the Machinists in the United States District Court for the Eastern District of Virginia. This suit seeks, on both collateral estoppel and substantive grounds, to extend the Shea ruling to all RLA nonunion employees subjected to that union's agency shop requirements. Lutz v. Machinists, Civil Action No. 00-148-A (E.D. Va.). The Foundation's press release announcing the filing of Lutz can be read at http://www.nrtw.org/b/nr_177.htm.

On April 17, 2000, the United States District Court for the Northern District of California certified a plaintiff class of approximately 1500 nonunion health and social service professional employees of the State of California in a lawsuit against an affiliate of the American Federation of State, County & Municipal Employees ("AFSCME"). The plaintiffs' complaint challenges the constitutionality of the procedures by which the union collects compulsory "fair share" fees, contending that those procedures do not adequately protect the employees' right not to subsidize the union's political and other non-bargaining activities. The National Right to Work Legal Defense Foundation is providing the plaintiffs' attorneys in this case, Murray v. Local 2620, AFSCME, No. C-99-3668 MHP (N.D. Cal., filed July 30, 1999). The Foundation's press release announcing this decision can be read at http://www.nrtw.org/b/nr_187.htm.

The March 2000 issue of the Judicial/Legislative Watch Report:

• The President wants to extend the Family and Medical Leave Act to include 10 million employees of small businesses who are not now covered. He also wants a $20 million program to help states find ways to make paid family leave more available, such as using unemployment or disability insurance funds.
• In 1990, 8,413 employment discrimination complaints were filed in federal courts. In 1998, there were 23,735, fueled partly by the enactment of the ADA in 1990 and the Civil Rights Act Amendments of 1991. In 1998, 39 percent of the cases were settled and 14 percent were dismissed voluntarily. Of the 1,083 cases tried in that year, plaintiffs won 384 and received monetary awards in 302 (compared with 170 wins and 143 monetary awards in 715 cases in 1990). Median damage awards declined from $450,000 to $137,000 over the period, and the incidence of $1 million-or-more verdicts went from 43 percent in 1990 to 14 percent in 1998. However, verdicts of $10 million plus, only 1.4 percent of all awards in 1990, went up to 11 percent of awards in 1998. The report is by the DOJ Bureau of Justice Statistics www.ojp.usdoj.gov/bjs/whtsnw2.htm.