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.