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Raymond J. LaJeunesse, Jr. *
Despite popular belief, and contrary to some figures that may indicate
otherwise, the decline of organized labor in the United States is
a myth.
Organized labor's political and economic influence has not declined
over the last few decades, despite its decline in membership. Looking
at some of the numbers, private sector unions' total receipts in
real dollars increased from $4.8 billion in 1960 to $10.4 billion
in 1997. In other words, receipts more than doubled, despite the
decline in union membership from 14.6 million to 10.9 million members
during the same period.
There has also been an increased emphasis by labor unions in the
political arena, the strategy being that they can accomplish their
goals through means other than collective bargaining. Indeed, the
number of paid union lobbyists has increased substantially since
1978. Further, union Political Action Committees ("PACs")
received an increase in total receipts from $34.5 million in 1975-76
to $66.9 million in 1987-88, again doubling. Further, the reported
union PAC expenditures on federal campaigns in 1992 totaled $95
million. That list does not include the unreported "in kind"
contributions and expenditures that labor organizations routinely
make. This would include phone banks staffed by union employees
and members, publicity, printing, and mailing services for campaign
material that is sent out to union members and their families, registration
for "get out the vote" drives which allegedly are "non-partisan,"
but are targeted to union supporters who will get out and vote for
the candidates supported by their union, and union employees working
as political organizers among union members and their families.
In 1996, economics professor Leo Troy of Rutgers University, in
testimony before a House committee, estimated that organized labor's
"in kind" political contributions and expenses amounted
to $300-$500 million in the 1992 presidential election year. In
1996, the AFL-CIO alone, not including its constituent national
and international unions, spent $35 million on an issue advocacy
campaign that is not among the expenditures that get reported to
the Federal Election Commission.
According to AFL-CIO president John Sweeney, in 1998 unions registered
half a million voters in union households, mailed 9.5 million pieces
of campaign mail, made 5.5 million phone calls, purchased 511 different
campaign pieces that were distributed at thousands of work sites,
and had 392 paid field organizers working full time for more than
a month in congressional districts around the country.
In the more direct area of labor relations, there has been a substantially
increased emphasis on organizing, including the use of the new "corporate
campaign" technique, since President Sweeney took over the
AFL-CIO.
On the public sector side of the labor movement, the membership
in public sector labor unions has increased significantly over the
last few decades and, of course, this membership has increased in
direct relationship to the increase in size and power of government.
The more programs government has, the more public employees there
are, and the more public employee union members and non-members
represented by public sector unions there will be.
There is anecdotal evidence that shows that these efforts by organized
labor have had an effect in terms of power and influence both in
politics and in the economic sphere. On the political side, there
are several examples. One would be the defeat of California Proposition
226, which would have placed some minimal restrictions on the use
of union dues for political activities. Other examples include the
passage of an increased minimum wage in a Republican Congress, the
failure of a Republican Congress, for the last few years, to pass
any legislation limiting organized labor's special privileges, and
of course, the results of the 1998 Congressional elections.
On the economic side, the continued power of organized labor is
seen in the results of recent labor disputes, including the United
Parcel Service strike by the Teamsters, and the UAW strike against
General Motors.
Therefore, the question would appear to be this: why has organized
labor's political and economic influence continued to thrive, despite
a decline in union membership on the private sector side? The answer
is that organized labor has many extraordinary privileges and immunities
that were created by legislatures and the courts.
There are numerous examples of this. The Clayton Act of 1914 exempts
unions from anti-monopoly laws. The Norris-Laguardia Act of 1932
and state injunction acts give labor organizations immunity from
injunctions against trespass on an employer's property. The principle
of exclusive representation, which is embedded in all of our labor
relations statutes, enables unions to deprive employees of the right
to make their own employment contracts. Unlike other parties in
the economic marketplace, unions can compel employers to bargain
in good faith with them. Unlike other employees, union-represented
employees have the right to strike; that is, to refuse to work while
keeping their job. And, unlike any other private organization, except
for some state bar associations, unions can compel individuals to
support them financially in 29 states under the National Labor Relations
Act, all states under the Railway Labor Act, and many states under
public sector labor relations acts.
This is not a minor issue; there are many employees who oppose
organized labor's political and, for that matter, bargaining goals.
For example, while 95% or more of organized labor's political contributions
and expenditures has supported Democrats since 1980, between 32%-40%
of the voters from union households have voted Republican, depending
on the particular election year, according to polling data that
was published in the New York Times on November 9, 1998.
Another privilege that the unions have is in the Federal Election
Campaign Act, which exempts unions from its limits on campaign contributions
and expenditures as well as some of its reporting requirements.
Unions are free to spend unlimited amounts on communications to
members and their families in support of or opposition to candidates
for federal office, and they need not report these expenditures
if the communications are in union publications that are primarily
devoted to other subjects.
Finally, and perhaps the most egregious example of these special
privileges and immunities, is the Enmons decision [United States
v. Enmons, 410 U.S. 396 (1973)] in 1973, in which the United States
Supreme Court held that union violence is exempted from the Hobbs
Act, which makes it a federal crime to obstruct interstate commerce
by robbery or extortion.
There are, however, some statutory and judicial prohibitions on
organized labor's collection of compulsory dues for politics and
ideological purposes. The first is that unions may not require employees
to become actual full members of the union, subject to the union
constitution. The United States Supreme Court so held under the
National Labor Relations Act in 1963 in the General Motors case
[NLRB v. General Motors Corp., 373 U.S. 734 (1963)], and reiterated
that holding in the Pattern Makers decision [Pattern Makers v. NLRB,
473 U.S. 95 (1985)] in 1985, in which the Court concluded that even
employees who join unions have a right, under the National Labor
Relations Act, to resign their membership at any time. All these
employees are required to do to comply with the compulsory union
agreement is pay the dues equivalent. Moreover, after the Court's
Hanson decision [Railway Employees' Dep't v. Hanson, 351 U.S. 225
(1956)] in 1956, these rules have also been applied under the Railway
Labor Act.
The other limitation is that unions may not require objecting non-members
to subsidize activities other than collective bargaining and contract
administration. That principle was established under the Railway
Labor Act in the Street case [Machinists v. Street, 376 U.S. 740
(1961)] in 1961, in which the Court held that railway and airline
unions cannot use compulsory dues and agency fees for political
and ideological activities. This ruling was extended in the Ellis
decision [Ellis v. Railway Clerks, 466 U.S. 435 (1984)] in 1984
where the Court held that unions also could not charge objecting
employees for organizing, extra-unit litigation, and publications
that are devoted to otherwise non-chargeable activities under the
Railway Labor Act.
In Aboud v. Detroit Board of Education [931 U.S. 209 (1977)], decided
in 1977, the Court extended this reasoning to public sector employees,
when it held that it is a violation of the First Amendment of the
United States Constitution to use objecting non-members' agency
fees for purposes other than collective bargaining: specifically,
political and ideological activities. This decision was extended
and clarified in 1991 in the Lehnert case [Lehnert v. Ferris Faculty
Ass'n, 500 U.S. 507 (1991)], which I argued, and where the Court
held that unions cannot use public employees' monies against their
will for lobbying and public relations activities, with a few minor
exceptions.
And, of course, there is Communications Workers v. Beck [487 U.S.
735 (1988)], where the Court held that the National Labor Relations
Act also limits the use of compulsory dues and agency fees to purposes
related to collective bargaining and contract administration.
Even so, organized labor has several ways in which it can avoid
these limitations. For instance, as I pointed out earlier, the limits
on dues apply only to non-union members, and the lower courts interpreting
the Court's decisions have held that members have no right to object
to the use of their dues for any purpose authorized by the union
constitution and the union leadership. Therefore, in order to get
people who would otherwise object to the use of their money to support
the union's political activities, the unions deceive employees into
joining unions. They accomplish this in several ways. There is active
misrepresentation, some of it intentional, some of it unintentional;
for example, telling employees, either verbally or in writing, that
they have to join a union. By unintentional, I mean that a lot of
union officials at the shop level, the union stewards and local
union officials, do not even know what the law is. To them, the
contract says membership, which means everyone has to join the union.
This leads me to the Marquez decision [Marquez v. Screen Actors
Guild, 119 S.Ct. 292 (1998)] heard by the Court just this month,
a case which I argued. As the law currently stands, 80% of the collective
bargaining contracts in the private sector state that an employee
has to be a member of the union, or has to be a member in good standing,
in order to work for the company in question. In Marquez, we argued
that this should not be permitted. We argued that the collective
bargaining agreements should say what the limits are on what can
be required of an employee, in accordance with Supreme Court jurisprudence
from General Motors through Beck.
Unfortunately, the Court in Marquez held that a union does not
breach its duty of fair representation merely by negotiating a union
security clause that uses the statutory language, that is, says
that membership is required without expressly explaining in the
agreement the refinements dictated by General Motors and Beck. The
Wall Street Journal, in an editorial about the Marquez decision
on November 10, 1998, said that the Court had taken the improbable
position that while "workers don't have to become union members,
unions may continue to lie about that fact in contracts." What
is even more inexplicable to me is that this was a unanimous decision,
despite that fact that three circuits and Justices Kennedy and Thomas
in their concurring opinion have recognized that the only realistic
explanation for the retention of the statutory language in contracts
is to mislead employees about their rights. But the Supreme Court
does declare the law of the land.
Fortunately, the Court's decision was a very narrow one. The Court
made it very clear that unions have an affirmative duty of fair
representation to inform employees about their rights under General
Motors and Beck, that is, that employees do not have to be full
members and only have to pay the court-defined costs of collective
bargaining and contract administration. Justices Kennedy and Thomas,
in their concurring opinion, emphasized this point by stating, "the
opinion does not address circumstances in which there is evidence
that a security clause such as this one was used or intended to
deceive or injure employees."
The problem with the Court's rationale is that the notices that
unions give of employee rights under General Motors and Beck are
typically given in ways so that they are unlikely to be seen or
heard by many employees. For example, the unions use fine print
buried in union publications, which somebody who does not support
the union in all likelihood is not going to want to read in the
first place, and in fleeting postings on union bulletin boards buried
in the corner of the shop, which are only up for a month or so.
Therefore, a lot of people are not made aware of their rights under
General Motors and Beck. We at the National Right to Work Foundation
get calls from employees all the time who have to deal with this
problem.
Moreover, even when employees do learn what their rights are, many
of them are afraid to refrain from membership in the union for two
reasons. First, non-members have no say concerning their employment
terms and conditions. They cannot vote for union officers who select
the negotiators. They cannot serve as negotiators or participate
in the process of selecting negotiators, and they cannot vote on
the ratification of the contract that is to determine their wages
and other benefits. Therefore, many employees are coerced into joining
the unions simply in order to have a say in the collective bargaining
process.
The second reason why many workers join unions who would not otherwise
do so is that there is subtle and not so subtle discrimination against
and pressure upon non-members in the shop, ranging from hints such
as, "well, if you're a non-member, we're not really going to
pursue your grievance very vigorously if you have a grievance against
the employer," to outright verbal abuse, threats, and actual
violence. Again, at the National Right to Work Foundation, we have
received requests for assistance from many employees who have suffered
all of these subtle and not so subtle forms of harassment and pressure
from organized labor. Finally, assuming a non-member finds out what
his rights are and has the courage to exercise them by objecting
to the use of his compulsory agency fees for non-bargaining purposes,
that worker still faces several procedural hurdles.
Nevertheless, there are procedural safeguards that are supposed
to be in place for objecting employees. These safeguards were set
forth by the Supreme Court in 1986 in the Hudson decision [Teachers
Local No. 1 v. Hudson, 475 U.S. 292 (1986)]. These safeguards include
advance reduction; that is, if an employee objects to the use of
his money for purposes other than collective bargaining, the union
is supposed to collect from him only the amount that the union concedes
goes towards collective bargaining costs, and not collect full dues
and then later give the employee a rebate. The second safeguard
Hudson put in place is a notice requirement for the basis of the
calculation of the reduced amount, including verification by an
independent auditor. There also is supposed to be an opportunity
for prompt review, if anyone wants to challenge the calculation,
before an impartial decision-maker, and the money is supposed to
be held in escrow while such challenges are pending.
However, these procedural safeguards are really not sufficient
to protect the objecting employees' rights. As I have already stated,
notice of the right to object is buried in union publications so
that many workers do not even know they have the right to object.
Moreover, the unions impose annual objection and window period requirements;
that is, an employee can only object during a relatively short period
of time, typically fifteen days to a month, which they have to do
every year. In the Shea case [Shea v. Machinists, 154 F.3d 508 (5th
Cir. 1998)], the Fifth Circuit found that this requirement of annual
objection violates the First Amendment and violates the duty of
fair representation.
Another problem with these procedural "safeguards" is
that a union can unilaterally determine the amount collected from
objecting employees. There is no opportunity for a pre-taking hearing
found in most due process cases. Additionally, the pre-taking audit
authorized in the Hudson decision has been interpreted by the lower
courts as not verifying a union's categorization of activities as
lawfully chargeable or not. The auditors only check the math.
The unions have also gotten around the requirement of review by
an impartial decision maker by establishing a scheme, in concert
with the American Arbitration Association, under which the objecting
non-member employee has no say in who the arbitrator is. The arbitrator
is selected by the AAA from a special panel. To get on that special
panel, the arbitrator needs to have recommendations from four unions,
hardly a good example of fairness. In these procedures, there is
no right to discovery, and of course, an employee needs discovery
in these cases because unions have all the books and records. There
is no compulsory process at the hearings: the objecting employee
has no right to compel the union to produce witnesses and documents
that the employee wants produced. Further, the rules of evidence
do not apply, so the union can support its case with self-serving
hearsay.
There is another case that I argued, Miller v. Air Line Pilots
Association [118 S.Ct. 1761 (1998)], that I would like to discuss.
In that case, the Supreme Court, in its last term, held that a non-member
employee is not required to exhaust the union-created arbitration
procedure before he can proceed to court on his claims. The Sixth
Circuit has held that if an employee does get through such a procedure,
that employee is entitled to normal discovery once he gets to court.
[See Bromley v. Michigan Educ. Ass'n, 82 F.3d 686 (6th Cir. 1996).]
Another major hurdle for employees who want to challenge the use
of their dues for political purposes is the National Labor Relations
Board's failure to enforce the Beck decision vigorously. The NLRB
General Counsel has unreviewable discretion to issue complaints
on charges. Since 1994, the General Counsel has instructed Regional
Directors who normally make these decisions to immediately dismiss
Beck charges they find unworthy and to not issue complaints on Beck
charges they do find worthy: they are to send these cases to Washington
for the Division of Advice to make the decision. Moreover, Regional
Directors have refused to issue complaints on many Beck charges
at the direction of the General Counsel. In addition, the General
Counsel has settled many Beck charges with no real relief for the
charging employees, requiring only the posting of a notice but no
return of the monies that were collected in violation of the law.
Perhaps the most egregious problem with the Board is its delay
of decisions in Beck enforcement cases for protracted periods. For
example, the Board took eight years to issue its first post-Beck
decision in California Saw and Knife Works [320 NLRB 224 (1995),
enf'd sub nom., Machinists v. NLRB, 133 F.3d 1012 (7th Cir. 1998)].
In fact, I am now handling a case that has been pending before the
Board for ten years. I have filed a petition for mandamus with the
D.C. Circuit Court of Appeals to force the Board to move on it,
but who knows what they will eventually do.(1)
In an October 15, 1997 letter, then Board Chairman William Gould
admitted to a Congressman that nearly half of the sixty-five cases
then pending for two or more years were Beck cases, and implied
that Board member Sarah Fox was holding up those decisions for political
reasons. This leads me to my next point about the Board: the current
Board majority has had a pro-union bias. Chairman Gould who, in
some ways, was one of the better Board members before he retired,
publicly criticized the Supreme Court's decisions upholding employees'
rights not to join unions, and stated that unions should be permitted
to use compulsory dues for lobbying. Member Fox, who is rumored
to be the next nominee for Chairman, is a former labor counsel with
Senator Ted Kennedy and for the Bricklayers union. Member Liebman
is a former attorney for the Bricklayers and the Teamsters.
Finally, as far as the hurdles that employees face when they want
to challenge the use of their dues for politics, the highest are
the costs, difficulties, and protracted nature of this type of litigation.
Justice Black predicted this in the Street case in 1961 in his dissent
from the Court's failure to declare compulsory unionism arrangements
unconstitutional. Justice Black said:
"It may be that courts and lawyers with sufficient skill in
accounting, algebra, geometry, trigonometry and calculus will be
able to extract the proper microscopic answer from the voluminous
and complex accounting records of the local, national, and international
unions involved. It seems to me, however, that this formula with
its attendant trial burdens promises little hope for financial recompense
to the individual workers whose First Amendment freedoms have been
flagrantly violated."
The "paycheck protection" and Beck enforcement bills,
which have been proposed in a number of cases, would still require
employees to go through all of the various procedural hurdles which
would arise, including protracted litigation. These so-called "remedies"
would still leave it to the union to determine the amount of the
fee in the first place; therefore, the employee must either rely
on the honesty of the union officials to do the calculations or
bring a lawsuit. Many of these proposals do not even extend the
prohibition on the use of compulsory dues as far as the Supreme
Court's Beck decision would indicate. Worst of all, one of the Beck
enforcement proposals, the so-called McCain-Feingold Bill, would
have left enforcement exclusively in the hands of the National Labor
Relations Board. I have already indicated the problems with such
an arrangement.
The real solutions to the misuse of compulsory union dues for politics
are two-fold. One was pointed out by Justice Black in the Street
case. This was that the Court should simply hold that the collection
is unconstitutional; therefore, the employees would not have to
pay for the politics in the first place and would not have to go
through the objection process. This solution, of course, requires
the overruling of Supreme Court decisions or the passage of a National
Right to Work law by Congress, and state right to work laws with
regard to public employees by state legislatures.
The ultimate fundamental solution would be for the United States
Supreme Court to declare exclusive representation unconstitutional,
or for Congress and state legislatures to repeal the statutory authorization
of exclusive representation. This would eliminate the Hobson's Choice
that employees face of either having to stay non-members in order
to exercise their rights to not pay for politics, thus having no
say in what their terms and conditions of employment are, or giving
up the right to object and joining the union so that they have some
say in how their wages and benefits are set.
In conclusion, organized labor will continue to have political
and economic influence far out of proportion to its voluntary membership
so long as the extraordinary statutory privileges of exclusive representation
and compulsory unionism enable it to compel membership and financial
support of political activities from unwilling employees.
* Ray LaJeunesse's remarks were made at the Federalist Society's
annual Lawyers Convention in Washington, D.C. on November 12, 1998
at the Labor and Employment Practice Group's panel on the Future
of Unions. The panel was moderated by practice group subcommittee
chairman John Irving, with the law firm of Kirkland & Ellis.
Mr. Irving was formerly General Counsel of the National Labor Relations
Board. The other panelists included: Daniel Yager of the law firm
of McGuiness & Williams and General Counsel of the Labor Policy
Association, and James Coppess, Associate General Counsel of the
AFL-CIO.
- Since this speech, the Court ordered the Board
to set a date by which it would issue a decision. The Board subsequently
decided the case on January 28, 1999. American Fed'n of Television
and Radio Artisis, Portland Local, 327 NLRB No. 97 (1/28/99).
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