by Charles W. Baird

Charles W. Baird is a professor of economics and
director of the Smith Center for Private Enterprise Studies,
California State University at Hayward.

Executive Summary

On April 13, 1992, in what many consider to be nothing
more than an act of political opportunism, President Bush
issued Executive Order 12800, which requires all federal
contractors to inform their employees of their "Beck rights."
The order stems from a 1988 U.S. Supreme Court opinion, Com-
munication Workers of America v. Beck, in which the Court
declared that employees forced to pay union dues under the
National Labor Relations Act (NLRA) do not have to contribute
to a union’s partisan political activities. The Communica-
tion Workers of America had been using as much as 79 percent
of Harry Beck’s dues for such activities, almost all in sup-
port of Democratic party candidates.

In his April 13 public comments announcing the executive
order, the president also announced that he had instructed
Secretary of Labor Lynn Martin to propose changes in the
financial disclosure forms that unions must file under the
1959 Landrum-Griffin Act. The changes she has since pub-
lished in the Federal Register for public discussion will, if
they are adopted, require unions to disclose their expendi-
tures by category, which will better enable the Department of
Labor, the National Labor Relations Board (NLRB), employees,
and employers to enforce Beck rights.(1) The president also
publicly urged the NLRB to begin to do a better job of en-
forcing workers’ Beck rights.

Those who charge the president with political opportun-
ism have a point. After all, the Beck decision was handed
down on June 29, 1988. In the almost four years between then
and April 13, 1992, President Bush did almost nothing
to enforce the decision. As we will see below, there were
two failed attempts in Congress to codify Beck rights, but
the president did little to help in the effort. Those
rights simply did not seem to be important to him. But this
is an election year, and labor unions have a long history of
using forced dues to support Democratic presidential and
congressional candidates. President Bush has publicly
stated that he will do anything it takes to get reelected.
He apparently thinks that enforcing Beck is one of those
things. While I applaud his April 13 actions and wish he
had done more, his timing suggests that he is more concerned
with his own reelection than with workers’ rights.

Bill Clinton, governor of Arkansas and the probable
1992 Democratic presidential nominee, responded to President
Bush’s announcements by calling Beck a "fair decision." He
too noted, however, that the decision was four years old and
added, "President Bush could have signed this order at any
time since the decision was handed down. The fact that he
waited until now is clear evidence that President Bush is
playing politics with labor instead of providing real lead-
ership for our workers."(2)

Lane Kirkland, president of the AFL-CIO, was not happy
about President Bush’s April 13 announcements. "By this
obsequious pandering to the ultra-right special interests of
his party, the president has given hypocrisy a bad name,"
said Kirkland.(3) Inasmuch as the Beck decision was written
by Justice William Brennan, with dissents from Justices
Scalia, O’Connor, and Blackmun, Kirkland himself could well
be accused of hypocrisy. At bottom, however, the issue has
nothing to do with ultra-right (or left) politics. It is
about basic human rights for all workers.

Market liberals who might be tempted to argue that the
decision improperly imposes government regulation on purely
private contractual relationships must realize that no col-
lective-bargaining contract under the NLRA can rightly be
considered a private voluntary exchange relationship. In-
deed, under that statute, government coercion pervades the
entire collective-bargaining process. What the Beck deci-
sion does, in fact, is mitigate an otherwise intolerable
situation brought about by government in the first place.
In a nutshell, it enables a worker, already compelled to pay
dues to a union as a condition of continued employment, to
withhold that portion of his dues that the union would oth-
erwise spend for purposes of which he may disapprove, such
as partisan political activities.

To illustrate those points, I will begin by examining
the three principles embodied in the NLRA–exclusive repre
sentation, union security, and mandatory bargaining in "good
faith"–on which coerced payment of union dues is based.
Second, I will discuss whether there is government action in
union security arrangements. Third, I will suggest a taxon-
omy of union expenditures that helps to clarify the issues
raised in the series of Supreme Court cases that culminated
in Beck. Fourth, I will review the case history, starting
with the 1956 Hanson decision. While Beck involved private-
sector employment under the NLRA, all the preceding cases
involved either employment under the Railway Labor Act (RLA)
or public-sector employment. As we will see in the case
history, there can be no doubt that the statute-based re-
strictions in the RLA cases apply to comparable questions
under the NLRA. The Court said so in Beck on the grounds
that the relevant statutory provisions of the two acts are
almost identical. However, it is arguable that the Court
will not apply the constitutional restrictions it imposed in
the public-sector cases to forced dues disputes under the
NLRA. It was silent on constitutional questions in Beck. I
will explain why I think there is sufficient government
action in the NLRA to apply the constitutional restrictions
imposed in the public-sector cases to NLRA cases. Then I
will report on problems that have emerged in the enforcement
of Beck, Congress’s two failed attempts to codify the deci-
sion, and the details of President Bush’s April 13 measures.
In conclusion, I will offer some conjectures about the im-
pact of the Beck ruling on unions and discuss the responsi-
bilities of the Department of Labor and the NLRB.

Three Key Statutory Unionist Principles

The relevant unionist statutes are the RLA, first en-
acted in 1926 and amended in 1934 and 1951; the NLRA, first
enacted in 1935 and amended in 1947 and 1959; and individual
state statutes that regulate unionism in state and local
government employment. The state public-sector statutes are
modeled on the two federal private-sector statutes, which
are very similar to each other. The RLA covers employment in
the railroad and airline industries, and the NLRA covers all
other private-sector employment.

Exclusive Representation

Section 9(a) of the NLRA and Section 2, Fourth of the
RLA stipulate that a union that receives a majority of votes
in a certification or representation election becomes the
"exclusive bargaining agent" for all the workers who were
eligible to vote in the election. Eligible voters consti-
tute a "bargaining unit." Such an election is held when a
union (or unions) gets at least 30 percent of the eligible
employees of an enterprise to sign cards authorizing the
union to represent them. A union certified by that process
represents all the workers who voted for it, all the workers
who voted against it, and all the workers who did not vote.
It is a winner-take-all election system patterned after the
rules for electing members of Congress. Where there is a
certified union, individual employees are prohibited from
representing themselves in matters having to do with wages
and salaries and other terms and conditions of employment
(the matters that come under "the scope of collective bar-

It is important to recognize that under the principle
of exclusive representation, created by federal statute, the
minority (all workers who do not vote in favor of the win-
ning union) are put to a choice between submitting to the
will of the majority regarding the sale of their individual
services or losing their jobs. That is governmentally im-
posed coercion, pure and simple. The fact that workers can
opt out of the unwanted representation services of a certi-
fied union by quitting their jobs does not mitigate the
coercion. If an individual owns his own labor, and has a
further right to enter into contracts with any willing buyer
of that labor on terms that are mutually acceptable, then
exclusive representation overrides those rights. Such an
arrangement sacrifices individual rights to group rights,
much like the present constitution of South Africa does.
And since exclusive representation exists solely by virtue
of federal statute, the federal government, not any private
party, is the source of the coercion. On its face, this is
government action: government gives powers to the majority
that they otherwise would not have.

The constitutionality of the NLRA was upheld in 1937 by
a five-to-four vote of the Supreme Court in NLRB v. Jones &
Laughlin Steel Corporation. The Court did not even try to
address the inconsistency of exclusive representation and
individual freedom of contract. On the contrary, it actual-
ly asserted that under exclusive representation any individ-
ual employee could enter into an independent employment
contract with the employer.(4) Notwithstanding that, in 1944,
in J. I. Case Co. v. NLRB, the Court held that exclusive
representation precluded individual contracting,(5) and it did
so without any mention, much less explanation, of its earli-
er assertion in Jones & Laughlin.(6)

Unionists defend exclusive representation by analogy
with congressional elections. An elected member of the
House of Representatives represents all the people in his
congressional district, including those who did not vote for
him. That is democracy–majority rule. If it is all right
in congressional elections, it must also be all right in
union certification elections.

But it is not all right. Majority-rule democracy is
the constitutionally mandated decision rule for governmental
matters, not private affairs. In the sphere of private
human action the ordinary decision rule is individual free
choice. Individuals associate on terms that are mutually
acceptable–and on those terms alone. An individual may
choose to join a private organization (e.g., a travel club)
that makes some decisions by majority rule, but he is free
to drop out of such organizations without penalty. There is
no governmental coercion involved. In the case of a union,
a penalty is assessed against a person who refuses to accept
the representation services of an exclusive bargaining
agent–that person loses his job as the result of a govern-
mentally imposed rule. If the contract between the union
and the employer were a private, voluntary exchange agree-
ment, there would be no government coercion. But under the
NLRA, collective-bargaining contracts are not private, vol-
untary exchange agreements.

The sale of one’s own labor is a private, not a govern-
mental, matter. Unions are private organizations, not gov-
ernments. Exclusive representation is an unconstitutional
grant of power to a private group. In the words of Justice
Murphy, in his 1944 concurring opinion in Steele v. Louis-
ville & Nashville R.R. Co.:

The constitutional problem inherent in [exclusive
representation] is clear. Congress . . . has
conferred upon the union selected by a majority
. . . the power to represent [all members of a bar-
gaining unit] in all collective bargaining matters.
While such a union is essentially a private organ-
ization, its power to represent members of [a bar-
gaining unit] is derived solely from Congress.(7)

In the same case the Court noted that, as an exclusive bar-
gaining agent, a union "is clothed with power not unlike
that of a legislature which is subject to constitutional
limitations on its power. . . ."(8)

Under our Constitution, as originally conceived, Con-
gress itself has no legitimate power to intervene in the
formation and execution of private, voluntary exchange con-
tracts. Congress has usurped that power, with the blessing
of the U.S. Supreme Court, mainly on the basis of an ille-
gitimate reading of the commerce clause of the U.S. Consti-
tution. That clause was originally intended to enable Con
gress to prevent state governments from interfering in in-
terstate commerce. Especially during the late 1930s, howev-
er, it became an excuse for the federal government to inter-
fere in almost all private contractual agreements. Accord-
ing to the Court, Congress has the power to set prices and
regulate terms and conditions of private employment con-
tracts. The NLRA, however, goes even further. It delegates
the power that Congress usurped to private groups–labor

The issue of unconstitutional grants of coercive power
to private groups was specifically addressed in 1935 by the
Supreme Court in Schechter Poultry Corp. v. United States(9)
and again in 1936 in Carter v. Carter Coal Co. In Schechter
a unanimous Court threw out the 1933 National Industrial
Recovery Act (NIRA), which permitted private producers in
any industry to set minimum prices for the products they
produced for sale. Those minimum prices, called "codes of
fair competition," were enforced by the National Recovery
Administration, the federal agency created to administer the
NIRA. The Court declared that it was unconstitutional for
Congress to grant the power to set minimum prices to private

The Carter case is particularly germane to exclusive
representation because the Court, by a six-to-three vote,
declared that the Bituminous Coal Conservation Act (BCCA) of
1935 was unconstitutional because of its labor provisions.
Subdivision (g) of Part III of the BCCA stipulated:

Whenever the maximum daily and weekly hours of
labor are agreed upon in any contract or contracts
negotiated between the producers of more than two-
thirds of the annual national tonnage production
for the preceding calendar year and the [union]
representatives of more than one-half of the mine
workers employed, such maximum hours of labor
shall be accepted by all the code members. The
wage agreement or agreements negotiated by collec-
tive bargaining in any [coal] district or group of
two or more districts, between representatives of
producers of more than two-thirds of the annual
tonnage production of each district . . . in the
preceding calendar year . . . and [union] repre-
sentatives of the majority of the mine workers
therein . . . shall be accepted as minimum wages
for the various classifications of labor by the
code members operating in such district or group
of districts.(10)

In other words, if the producers of more than two-
thirds of the coal and the unions representing one-half of
the mine workers reached agreement about maximum working
hours and minimum wages, the terms of that agreement could
be imposed, by force of federal law, on other private coal
producers and mine workers. That, the Court said, was pre-
cisely the same kind of grant of coercive authority to pri-
vate groups that was declared unconstitutional in Schechter:
The effect, in respect of wages and hours, is to
subject the dissentient minority, either of pro-
ducers or miners or both, to the will of the stat-
ed majority, since, by refusing to submit, the
minority at once incurs the . . . enforcement of
the drastic compulsory provisions of the act.
. . . To "accept" in these circumstances, is not
to exercise a choice, but to surrender to force.

The power conferred upon the majority is, in
effect, the power to regulate the affairs of an un
willing minority. This is legislative delegation in
its most obnoxious form; for it is not even delega-
tion to an official or an official body . . . , but
to private persons. . . . [A] statute which attempts
to confer such power undertakes an intolerable and
unconstitutional interference with personal liberty
and private property. The delegation is so clearly
arbitrary, and so clearly a denial of rights safe-
guarded by the due process clause of the Fifth Amend-
ment, that it is unnecessary to do more than refer to
decisions of this court which foreclose the ques-
tion.(11) [Schechter was the first such case cited.]

Note that the Carter Court referred to a "legislative
delegation" of coercive power to private persons. That
implies that Congress had the power to delegate in the first
place. As I stated above, if Congress has such a power, it
is the result of an illegitimate reading of the commerce
clause. The Court’s objection, however, was not that Con-
gress had no such power; it was that Congress illegitimately
gave that power to private parties. The Court used the
commerce clause in this case as an additional reason to
declare the BCCA unconstitutional. It said that the com-
merce clause grants Congress the power to regulate only
interstate commerce. Because the production of coal, as
distinct from its shipment, is local activity, it does not
involve interstate commerce; and so, the Court held, Con-
gress could not regulate it.

A year later in Jones & Laughlin the same justices
upheld the constitutionality of exclusive representation in
the NLRA by a five-to-four vote. The reason for the switch
is well understood and very instructive. It had nothing to
do with the discovery of a new constitutional principle or
the correction of past error. It had to do with power poli-
tics. After the Schechter decision in 1935, President
Franklin D. Roosevelt attacked the Court for standing in the
way of his New Deal attempts to cope with the Great Depres-
sion. He reminded everyone that the Constitution does not
specify the number of justices on the Supreme Court: the
actual number is left up to Congress with the concurrence of
the president. He opined that if the "tired old men" on the
Court did not change their tune and stop blocking New Deal
legislation, he would be tempted to expand the Court to 15
justices. He could thus see to it that "right thinking"
justices would be in the majority. President Roosevelt
delivered a national radio address on the issue between the
announcement of the Carter decision and the day the Court
heard oral arguments in Jones & Laughlin.

The majority in Carter consisted of Justices Butler,
Roberts, McReynolds, Sutherland, and Van Devanter along with
Chief Justice Hughes, who filed a concurring opinion. The
minority, who favored upholding all of the BCCA, consisted
of Justices Brandeis, Cardozo, and Stone. Chief Justice
Hughes concurred with the majority on what it called the
legislative delegation issue but dissented from its commerce
clause analysis insofar as it applied to the nonlabor por-
tions of the BCCA. The majority in Jones & Laughlin includ-
ed Chief Justice Hughes and Justice Roberts along with the
three Carter dissenters. Hughes and Roberts, it is widely
believed, were sufficiently intimidated by Roosevelt’s
Court-packing threat to switch their votes. That has ever
since been known as "the switch in time that saved nine."

However that may be, one searches in vain in the major-
ity opinion in Jones & Laughlin for an analysis of the prob-
lem of granting coercive powers (or, as the Court would put
it, delegating legislative powers) to private groups. The
issue was dismissed with no explanation.

In the Carter Case [and in Schechter] . . . the
Court was of the opinion that the provisions of
the statute relating to production were invalid
upon several grounds–that there was improper
delegation of legislative power and . . . require-
ments [that] were also inconsistent with due pro-
cess. These cases are not controlling here.(12)

Even the minority ignored the issue of the private use of
coercive powers. They rested their dissent on their inter-
pretation of the commerce clause, which precluded regulation
of local production even if what was produced locally was
later shipped in interstate commerce. The dissent included
only a brief reference to due process rights of contract in
the context of Sections 8(1) and 8(3) of the original NLRA,
which made it an unfair labor practice for an employer to
fire a worker for union activities.

The right to contract is fundamental and
includes the privilege of selecting those with
whom one is willing to assume contractual rela-
tions. This right is unduly abridged by the Act
now upheld. A private owner is deprived of power
to manage his own property by freely selecting
those to whom its manufacturing operations are to
be entrusted. We think this cannot lawfully be
done in circumstances like those here disclosed.(13)

It is certainly true that, as a practical matter, the
Constitution means whatever a majority of sitting Supreme
Court justices say it means. However, any disinterested
reading of the Constitution, and of Court decisions that
predated Jones & Laughlin, would clearly indicate that that
case was wrongly decided and should be overturned–however
unlikely that may be, given today’s special interest poli-
tics. For purposes of this study, however, it is important
to be clear that there is government coercion behind all
collective-bargaining agreements reached under the NLRA.
That coercive government action gives rise to constitutional
questions addressed later in this study.

Union Security

Section 8(a)3 of the NLRA and Section 2, Eleventh of
the RLA provide that a union that is the certified exclusive
bargaining agent for a group of workers, together with the
employer of those workers, may include a "union security"
clause in their collective-bargaining agreement. Such
clauses are not mandated, but they are permitted. Under
such a clause, all the workers who are represented by an
exclusive bargaining agent must either (a) become members of
the union at the end of their probationary period (usually
30 days after being hired under the NLRA and 60 days after
being hired under the RLA) or (b) pay representation fees to
the union. The former arrangement constitutes a union shop,
the latter an agency shop.

The purpose of such clauses is to provide certified
unions with security against "free riders"–workers who
receive the benefits of a union’s representation services
without paying for them. Unionists argue that since, under
the principle of exclusive representation, a certified union
must represent all the workers in a bargaining unit, it is
only fair that all such workers pay their fair share of the
union’s costs of doing so. In a later section of this study
we will see that the Court justifies union security solely
on the basis of the free-rider argument.

Union security is at the heart of Beck and related
decisions. The term "forced union dues" refers to moneys
exacted from workers who are not voluntary union members but
who, under either a union shop or an agency shop, must pay
money to a union as a condition of continued employment.
They pay or they are fired. Beck and related cases are all
about what the unions that receive money from involuntary
payers are permitted to do with that money. If there were
no union security the whole issue would be moot; there would
be no forced dues about which to litigate. In fact, in the
21 right-to-work states, where union security is prohibited,
the Beck decision is irrelevant. (Under Section 14(b) of
the NLRA, which was added in 1947, states may prohibit un-
ions and employers from including union security clauses in
their collective-bargaining contracts.) Under the RLA,
however, states cannot adopt right-to-work laws. Thus,
railroad and airline employees who are based in states that
have right-to-work laws under the NLRA may be forced to pay
union dues as a condition of continued employment.

In 1963, in NLRB v. General Motors Corp., the Supreme
Court effectively outlawed the union shop, holding that
workers who do not want to become regular, full union mem-
bers participating in union activities and responsibilities
do not have to. All they have to do is pay the uniform dues
and initiation fees that ordinary union members pay. There
are still union security agreements that are called union
shops, but, under General Motors, the union "membership"
required by such agreements has been "whittled down to its
financial core."(14) Thus, for the purposes of this analysis,
there are no significant differences between an agency shop
nonmember and a union shop "financial core" member.

Yet even that correction leaves the basic problem un-
touched. For although an unwilling worker need no longer be
a union "member," he still must associate with the union
through forced dues. On its face such forced affiliation is
an infringement of the employee’s right of free association.
After all, freedom of association logically implies the
freedom to choose with whom to associate. It also implies
the freedom to choose not to associate with X and instead
associate with Y, or not associate with anyone. But, as a
constitutional right, freedom of association restricts gov-
ernment. It prohibits government from forcing people, or
forbidding people, to associate with whomever they wish.
Private groups, such as churches, are free to regulate the
association of their members as a condition of continued
membership in the group. If members do not like it they can
always leave the group. Unionists argue that since union
security arrangements are merely permitted, not mandated, by
the law, the constitutional freedom of association is not
affected by union security in private-sector employment.
Government, unionists argue, is not involved. There is no
government action to give rise to a constitutional claim.
We will examine that question later. In the third section
of this study we will see that the issue was important in
all of the forced dues Supreme Court cases from Hanson to

At this point, however, we should note that the free-
rider argument does not justify forcing workers to join or
pay dues to unions. First, it is disingenuous for unionists
to argue that since the principle of exclusive representa-
tion forces unions to bargain for all workers in a bargain-
ing unit, unions ought to be able to force workers to pay
for the representation services. It was the unions them-
selves who, before the passage of the original NLRA, ener-
getically argued, lobbied, and begged to get exclusive rep-
resentation written into the law. Before 1934 there was no
exclusive representation in the RLA, and exclusive represen-
tation was unheard of in the rest of the private sector. Now
that unions have the exclusive representation privilege,
they complain about having to represent workers who choose
not to join them. If there were no exclusive representa-
tion, unions would bargain only for their voluntary members.
There would be no free riders.(15) Congress and the unions
created the free-rider problem by establishing exclusive
representation, and to address the free-rider problem that
they created, they coerce workers who wish to remain union

Second, it is impossible for any third party to deter-
mine whether a union that represents a nonmember confers net
benefits or net harms on that person. Benefits and costs
are subjectively evaluated by each person, and subjective
evaluations cannot be measured, reported, or recorded on any
objective scale. Even if union representation increases the
monetary income of a nonmember, the psychic costs of being
forced to let the union speak for his interests could well
outweigh the monetary gain on the nonmember’s subjective
value scale. If that nonmember were forced to pay for the
representation services, he would be forced to pay for net
harms (i.e., he would be a "forced rider"). Compulsory
payments are just as likely to imprison forced riders as to
catch free riders. It is simply impossible to tell in any
individual instance which is the case.

Mandatory Bargaining in Good Faith

Sections 8(a)5 and 8(d)of the NLRA and Sections 2,
First and Second of the RLA impose upon employers a duty to
bargain in good faith with certified exclusive bargaining
agents. In NLRB v. Borg-Warner Corp. (1958),(16) the Supreme
Court held that there are three categories of bargaining
topics: mandatory, voluntary, and illegal. A mandatory
subject of bargaining is one about which, if either the
union or the employer wishes to bargain, the other must
bargain. Union security is a mandatory subject of bargain-
ing. If a union says that it wants to bargain with an em-
ployer about union security, the employer cannot refuse to
do so. A voluntary subject of bargaining is one about which
either party is free to refuse to bargain even if the other
party wishes to do so. An example is whether a union must
take a vote of workers before calling a strike. An employer
(or a union) can refuse to bargain about that issue, and the
other party can do nothing about it. An illegal subject of
bargaining is one about which both the employer and the
union are forbidden to bargain. An example is a clause
requiring employers to deduct workers’ union dues from their
paychecks even if workers object to such deductions.

Bargaining about mandatory subjects must be done in
good faith. In practice, that means that neither side can
merely assert a position and stick to it. Each has to dem-
onstrate an honest effort to reach agreement. The best
defense against an allegation of failure to bargain in good
faith is a record of compromises. Not only does the law
require bargaining, it gives each side property rights to
concessions from the other.

Now, private, voluntary contracts are reached by people
who choose to bargain with each other and are free to stick
to their original terms if they want to, even though that
may mean that no agreement is reached. Here again, collec-
tive-bargaining contracts under the NLRA and the RLA are
very different from private, voluntary exchange contracts.

Government Action in Union Security

In view of the foregoing considerations, government
action is plainly behind all union security arrangements
under the NLRA. Only certified exclusive bargaining agents
are permitted to enter into union security agreements with
employers, and government action is clearly involved in the
creation of exclusive bargaining agents. As we saw above,
Section 9(a) of the NLRA and Section 2, Fourth of the RLA
mandate that employers recognize certified unions as exclu
sive bargaining agents. Without those statutory sections,
there could be no exclusive bargaining agents unless employ-
ers voluntarily chose to recognize such agents. Moreover,
as we saw above, the statutes force employers to bargain in
"good faith" with exclusive bargaining agents. The bargain-
ing is not voluntary, as it is in genuinely private affairs.
Any agreement reached in collective bargaining is a creature
of government coercion. It is not a truly private, volun-
tary contract.

In the absence of governmentally mandated exclusive
bargaining agents and forced bargaining, any union shop or
agency shop agreement between an employer and a union made
up of wholly voluntary members would be a private, voluntary
agreement with which the government would have no legitimate
right to interfere. With exclusive representation and
forced bargaining, government action is behind every union
security agreement. We will return to that issue in the
section on constitutional rights and the NLRA.

A Taxonomy of Union Expenditures

Many popular and journalistic discussions of the per-
missible uses of forced union dues imply that there are only
two categories of union expenditures: (1) those for the
narrow purposes of collective bargaining, contract adminis-
tration, and grievance resolution (hereinafter, collective
bargaining) and (2) those for partisan political or ideolog-
ical advocacy, or both (hereinafter, political advocacy).
Indeed, as we shall see below, the Supreme Court seemed to
adopt that two-category taxonomy until the 1980s. Clearly,
however, that taxonomy is incomplete. There are union ex-
penditures for activities that involve neither collective
bargaining nor political advocacy, and there are union ex-
penditures for activities that involve a mix of both.(17)
Union activities for which expenditures are made fall into
one of the four boxes shown in Figure 1. The two-category
taxonomy of popular, and pre-1980s Court, discussion in-
volves just the second (purely political) and third (purely
collective-bargaining) boxes. At least since the 1984 Ellis
decision, the Court has included Boxes 1 and 4 in the de-

Examples of Box 1 activities are unions’ national con-
ventions, at which there is discussion of collective-
bargaining goals and strategies as well as speeches from
candidates for political office, and union publications that
address both collective bargaining and political matters.
Examples of Box 2 activities are union-operated telephone
banks, designed to identify and assist voters who are

Figure 1

Taxonomy of Union Expenditures

(Graph Omitted)

friendly to political candidates endorsed by the union, and
political lobbying unrelated to collective-bargaining con-
tracts, such as lobbying on abortion or gun control. Box 3
includes such activities as negotiating with employers about
the terms of a union-management collective-bargaining con-
tract and settling disputes about the interpretation of a
collective-bargaining contract. Box 4 includes such activi-
ties as legal defense of union officers against charges of
corruption, union attempts to organize hitherto unorganized
workers who work for nonunion employers, and union contribu-
tions to charitable causes such as the United Way.

The taxonomy of union expenditures will be helpful as
we discuss the case history from Hanson to Beck. In brief,
before 1961 unions used forced dues to finance activities in
all four boxes. The early cases explicitly ruled out forc-
ing unwilling workers to pay for Box 2 activities and ex-
plicitly ruled in forcing them to pay for Box 3 activities.
In three cases in the 1980s culminating with Beck, as well
as one in 1991, activities in the other two boxes entered
the debate.

The Case History

Railway Employes'(sic) Dept. v. Hanson

In 1951 Congress amended the RLA to permit certified
unions and carriers (railroads and airlines) to include
union security clauses in their collective-bargaining con-
tracts. Until 1951 the tradition, in the railroads at
least, was voluntary unionism in which, although exclusive
bargaining agents were certified, no worker could be forced
to join or support the unions. In this case, Hanson and
other nonunion employees of Union Pacific Railroad Co.
brought suit in Nebraska courts to enjoin the union and
Union Pacific from enforcing their union security agreement.
In 1956 the nonunion workers claimed that union security was
unconstitutional because it impaired their First Amendment
freedom of association and denied them the due process pro-
tections of the Fifth Amendment. They also claimed that the
union shop agreement violated Nebraska’s state constitution.
Under Section 14(b) of the NLRA, Nebraska had adopted provi-
sions in its state constitution that outlawed union security
clauses in collective-bargaining contracts.

The Nebraska courts agreed with Hanson and his fellow
dissenting workers on both points and threw out the union
security agreement. In 1956 the U.S. Supreme Court over-
ruled the state courts on both points.

First, Section 2, Eleventh of the RLA overrides Section
14(b) of the NLRA. The RLA states:

Notwithstanding any other provisions of this Chap-
ter, or of any other statute or law of the United
States, or Territory thereof, or of any state, any
carrier or carriers as defined in this Chapter and
a labor organization or labor organizations duly
designated and authorized to represent employees
in accordance with the requirements of this Chap-
ter shall be permitted [to include union security
clauses in their collective bargaining agree-

Nonunion railroad and airline workers cannot be protected by
state right-to-work laws.

Second, the Court conceded that inasmuch as the RLA
explicitly denies states the right to adopt right-to-work
protections for railroad and airline employees, RLA union
security clauses involve the government action necessary to
give rise to questions under the U.S. Constitution.

If private rights are being invaded, it is by
force of an agreement made pursuant to federal law
which expressly declares that state law is super-
seded . . . . In other words, the federal statute
is the source of the power and authority by which
any private rights are lost or sacrificed . . . .
The enactment of the federal statute authorizing
union shop agreements is the governmental action
on which the Constitution operates, though it
takes a private agreement to invoke the federal

The Court also agreed that union security arrangements
could impair constitutional rights. Nevertheless, Congress
has the power, the Court held, to regulate the labor rela-
tions of interstate carriers under the commerce clause.
Moreover, there is an important government interest in main-
taining industrial peace that justifies some interference
with freedom of association and due process. The Court held
that union security per se did not violate either the First
or the Fifth Amendment. Congress decided that industrial
peace would be promoted by the union shop because workers
who receive the benefits of collective bargaining without
paying their fair share of the costs unions incur in provid-
ing them cause disharmony and instability. (The term "free
rider" was not used in the decision.) In the words of the
Congress has authority to adopt all appropriate
measures to "facilitate the amicable settlement of
disputes which threaten the service of the neces-
sary agencies of interstate transportation." . . .
These measures include provisions that will en-
courage the settlement of disputes "by inducing
collective bargaining with the true representative
of the employees . . . ." Industrial peace along
the arteries of commerce is a legitimate objec-
tive; and Congress has a great deal of latitude in
choosing the methods by which it is to be ob-
tained. The choice by the Congress of the union
shop as a stabilizing force seems to us to be an
allowable one.(20)

In a curious use of the term "right to work," apparent-
ly referring to the beliefs that strikes impair work and
that unions are less likely to strike if they get what they
want, the Court declared:
One would have to be blind to history to assert
that trade unionism did not enhance and strengthen
the right to work. . . . To require, rather than
to induce, the beneficiaries of trade unionism to
contribute to its costs may not be the wisest
course. But Congress might well believe that it
would help insure the right to work in and along
the arteries of interstate commerce.(21)

In other words, forcing workers to pay money to a union in
order to be able to work actually protects workers’ right to
work because a happy union will not try to prevent people
from working. As Alice discovered in Wonderland, those in
authority can make words mean whatever they want them to

Up to this point in the opinion, the union side got all
it wanted. The constitutionality of union security was
upheld on the grounds that Congress has the authority to
regulate interstate commerce and the government has an in-
terest in labor peace and harmony. Moreover, the RLA was
held to override state right-to-work laws. But then came
the following statements:

The only conditions to union membership authorized
by Section 2, Eleventh of the Railway Labor Act
are the payment of "periodic dues, initiation
fees, and assessments." . . . The financial sup-
port required relates, therefore, to the work of
the union in the realm of collective bargaining.(22)

. . . It is argued that compulsory membership
will be used to impair freedom of expression. But
that problem is not presented by this record.
Congress endeavored to safeguard against that
possibility by making explicit that no conditions
to membership may be imposed except as respects
"periodic dues, initiation fees, and assessments."
If other conditions are in fact imposed, or if the
exaction of dues, initiation fees, or assessments
is used as a cover for forcing ideological confor-
mity or other action in contravention of the First
Amendment, this judgment will not prejudice the
decision in that case. For we pass narrowly on
Section 2, Eleventh of the Railway Labor Act. We
only hold that the requirement for financial sup-
port of the collective bargaining agency by all
who receive the benefits of its work is within the
power of Congress under the Commerce Clause and
does not violate either the First or the Fifth
Amendments. We express no opinion on the use of
other conditions to secure or maintain membership
in a labor organization operating under a union or
closed shop agreement.(23)

Hanson and the other nonunion workers who brought suit
in this case attacked union security agreements per se.
They made no attempt to show that unions used forced dues
for political and ideological purposes. The Court upheld
union security, but only to the extent that forced member-
ship was for the purpose of collective bargaining. In so
deciding, the Court practically invited a future case in
which collective-bargaining activities could be distin-
guished from non-collective-bargaining activities. It got
such a case five years later.

Machinists v. Street

Machinists v. Street was originally brought in the
state courts of Georgia. The union security agreement was
between the International Association of Machinists and a
group of carriers called the Southern Railway System. The
dissenting workers were forced to pay 100 percent of the
regular union dues as a condition of continued employment.
They presented a carefully documented record that proved
that a "substantial part" of the union dues exacted from
them was used to pay for partisan political activities.
They asked to have the whole union security agreement thrown
out on constitutional grounds. The trial court and the
Georgia Supreme Court agreed with the complaining workers.
The 1961 U.S. Supreme Court decision was written by Justice
Brennan, who would also write the Beck decision 27 years

The union argued that the Court had cleared union secu-
rity agreements in the Hanson case, so the dissenting work-
ers had no case. The Court, however, did not buy that argu-
ment in its entirety:

[A]ll that was held in Hanson was that Section 2,
Eleventh was constitutional in its bare authoriza-
tion of union-shop contracts requiring workers to
give "financial support" to unions legally autho-
rized to act as their collective bargaining
agents. We sustained this requirement–and only
this requirement. . . . Clearly we passed neither
upon forced association in any other aspect nor
upon the issue of the exacted money for political
causes which were opposed by the employees.(24)

Hanson had allowed forced dues to be used for Box 3 (collec-
tive-bargaining) expenditures of the taxonomy of expendi-
tures set forth above and suggested that there might be
difficulties associated with using forced dues for Box 2
(political advocacy) expenditures. "Forced association in
any other aspect" could be interpreted to refer to expendi-
tures in the other two boxes, but the Court did not analyze
such expenditures in either Hanson or Street.

The Street Court agreed with the dissenting workers
that using exacted money for political purposes raised con-
stitutional "questions of the utmost gravity," but it also
reiterated its long-standing position that "Federal statutes
are to be so construed as to avoid serious doubt of their
constitutionality."(25) If Section 2, Eleventh could be in-
terpreted, on its own terms, as forbidding unions to use
money exacted from dissenting workers for political pur-
poses, the First Amendment questions of free speech and
association would not have to be addressed. The constitu-
tional questions would have to be faced only if Section 2,
Eleventh permitted forced dues to be used for politics.

After reviewing the history of union security in the
railroad industry and the legislative history of the RLA,
especially Section 2, Eleventh, the Court did indeed inter-
pret that section narrowly to permit the exaction of forced
dues from dissenting workers only for the limited purpose of
avoiding the free-rider problem. The only justification of
union security advanced by the unions and by Congress was
the capture of free riders. In the words of the Court:

The conclusion to which this history clearly
points is that Section 2, Eleventh contemplated
compulsory unionism to force employees to share
the costs of negotiating and administering collec-
tive agreements, and the costs of the adjustment
and settlement of disputes. One looks in vain for
any suggestion that Congress also meant in Section
2, Eleventh to provide the unions with a means for
forcing employees, over their objection, to sup-
port political causes which they oppose.(26)

. . . Congress did not completely abandon the
policy of full freedom of choice in the [RLA prior
to the 1951 amendments], but rather made inroads
on it for the limited purpose of eliminating the
problems created by the "free rider."(27)

Thus, the Court bought the unions’ free-rider argument in
support of forced dues, but it did so very narrowly. The
free rider of concern is one who gets the benefits of the
collective-bargaining services of an exclusive representa-
tive and otherwise would escape paying for such benefits.
According to the Court, forced dues, at least under the RLA,
are not authorized on any other grounds.

The Court did not grant the dissenting workers every-
thing they had asked for. The union security agreement at
issue was not declared unconstitutional. It could stand as
long as the forced dues were used for collective-bargaining
purposes, not for political purposes. How about Box 1 and
Box 4 activities of unions’ Are forced dues for Box 1 ac-
tivities permitted because they are for collective bargain-
ing or prohibited because they are for political purposes?
Are forced dues for Box 4 activities permitted because they
are not for political purposes or prohibited because they
are not for collective bargaining” The Court demurred:

We have before us only the question whether the
power [to expend forced dues] is restricted to the
extent of denying the unions the right, over the
employee’s objection, to use his money to support
political causes which he opposes. . . .

We express no view as to other union expendi-
tures objected to by an employee and not made to
meet the costs of negotiation and administration
of collective agreements, or the adjustment and
settlement of grievances and disputes. . . . We do
not understand . . . that there is before us the
matter of expenditures for activities in the area
between the costs which led directly to the com-
plaint as to "free riders," and the expenditures
to support union political activities.(28)

It was not until 1984, in the Ellis case, that such expendi-
tures would be examined by the Court.

The majority opinion in Street concluded by giving some
suggestions and guidelines for an "appropriate remedy" for
the political use of forced dues. Unions were to be permit-
ted to collect full union dues from workers who did not
object to the unions’ political activities, and they were to
be permitted to collect dues for collective-bargaining pur-
poses from dissenting workers. But forced dues would have
to be less than regular dues. The union could not collect
full dues from dissenters and then use all those forced dues
for collective-bargaining purposes. That would permit the
union to use for political purposes more of the dues col-
lected from voluntary payers than it otherwise could have.
In effect, the dissenters would still be subsidizing politi-
cal expenditures. The Court suggested that one possible

would be restitution to each individual employee
of that portion of his money which the union ex-
pended, despite his notification, for the political
causes to which he had advised the union he was op-
posed. . . . [T]he portion of his money the employee
would be entitled to recover would be in the same
proportion that the expenditures for political pur-
poses which he had advised the union he disapproved
bore to the total union budget.(29)

Three points in the Court’s suggestions for remedy
played a role in subsequent cases. First, each individual
dissenter had to file a complaint referring to specific
political expenditures to which he objected. No class ac-
tion was possible. Moreover, a worker could not opt out of
all political expenditures as a general category. He had to
object to specific political expenditures. Second, a rebate
scheme was all right. That is, a union could exact full
union dues and then later give a refund to any individual
dissenter. There was no mention of interest to be paid on
the refunded money. Third, the amount of the refund could
be determined by a percentage reduction formula based on the
percentage of the total union budget that was spent for
political purposes.

The problems surrounding the first point were partially
addressed in Railway Clerks v. Allen (1963). There the
Court loosened the Street constraint on dissenters by per-
mitting them to "opt out" of all political expenditures.
They no longer had to object to specific political expendi-
tures, but dissenters still had to object as individuals,
not as a class. The Allen Court also suggested that initial
reduction of dues rather than a rebate scheme would be an
appropriate remedy. That was only a suggestion, however,
and most unions ignored it.

The third point in the suggested remedy in Street
proved especially important to future cases. Although the
Court said that forced dues could be used only for collec-
tive-bargaining purposes, its suggested remedy did not re-
quire a union to defend the expenditures it labeled as col-
lective-bargaining expenditures. The base line was not zero
forced dues to which could be added proven collective-bar-
gaining expenditures. Rather, the base line was full union
dues from which could be subtracted expenditures that the
union admitted were for political purposes.(30) Moreover, the
unions themselves got to define all the terms and construct
all the procedures within the Court’s broad guidelines.

Justice Black vigorously dissented in Street. In his
view the Court had to strain to define Section 2, Eleventh
narrowly to permit the use of forced dues only for collec-
tive-bargaining purposes. He thought the Court should have
decided the case purely on First Amendment grounds. The
union security agreement in dispute should have been disal-
lowed in its entirety because it was tainted by political
uses of forced dues. He thought that a narrow statute that
explicitly limited the use of forced dues to collective-
bargaining purposes would pass constitutional muster because
the government’s interest in maintaining industrial peace
was sufficiently strong to justify the limited infringement
of First Amendment rights for that purpose. However, he
opined that in practice the accounting burdens involved in
separating permissible from impermissible uses should result
in unions’ deciding to devote all dues collected under union
security agreements to collective-bargaining purposes.

In expressing his views on the First Amendment, Justice
Black quoted James Madison and Thomas Jefferson.

If [using forced dues for politics] is constitu-
tional the First Amendment is not the charter of
political and religious liberties its sponsors
believed it to be. James Madison, who wrote the
Amendment, said . . . that "the same authority
which can force a citizen to contribute three
pence only of his property for the support of any
one establishment, may force him to conform to any
other establishment in all cases whatsoever." And
Thomas Jefferson said that "to compel a man to
furnish contributions of money for the propagation
of opinions which he disbelieves is sinful and
tyrannical." These views of Madison and Jefferson
authentically represent the philosophy embodied in
the safeguards of the First Amendment.(31)

Abood v. Detroit Board of Education

Abood v. Detroit Board of Education (1977) was the
first case involving union security agreements in government
employment. In such employment the typical form of union
security is the agency shop. Before Abood government em-
ployees did not have to become union members, but they did
have to pay full union dues (or "agency fees"). The plain-
tiffs, Abood et al., claimed that all union security agree-
ments in government employment were unconstitutional. Their
reasoning was that the First and Fourteenth Amendments bar
government from discriminating for or against any citizen on
the basis of his affiliation or nonaffiliation with a pri-
vate group such as a union. In public employment, govern-
ment is the employer. By refusing to hire any citizen who
does not affiliate with a private organization called a
labor union by paying money to it, a government would be
directly interfering with that citizen’s freedom of associa
tion. Unlike the private-sector employment cases, in this
case there can be no question about government action be-
cause the government itself is a party to the union security
agreement. Moreover, the specific Michigan statute in ques-
tion explicitly permitted the use of forced dues for politi-
cal purposes.

The Court decided against Abood and his coplaintiffs on
the question of whether union security agreements are ille-
gal per se in government employment. It recognized that
there was a legitimate constitutional question, but it said
that the government’s interest in maintaining labor peace
was sufficiently compelling to justify limited infringement
of freedom of association. The limit was set at compelling
government employees to pay only for the collective-bargain-
ing services of exclusive representatives.

In Street there was no need to worry about a constitu-
tionally justified limit because Section 2, Eleventh was
interpreted narrowly to permit the Court to avoid constitu-
tional questions. In that case, if the statute had permit-
ted forced dues to be used for political purposes, it would
have been necessary for the Court to decide a constitutional
limit to the permissible uses of such dues. But the statute
was held not to permit such uses, so the Court did not have
to set such a limit. In Abood, however, the constitutional
issue could not be avoided. Still, the Court asserted that
the government’s interest in achieving labor peace was suf-
ficient to justify the limited infringement of constitution-
al rights in the Michigan statute. But the part of that
statute that permitted forced dues to be used for political
purposes was held to be unconstitutional.

Our decisions establish with unmistakable
clarity that the freedom of an individual to asso-
ciate for the purpose of advancing beliefs and
ideas is protected by the First and Fourteenth
Amendments. . . .(32)

These principles prohibit a State from com-
pelling any individual to affirm his belief in God
. . . or to associate with a political party . . .
as a condition of retaining public employment.
They are no less applicable to the case at bar,
and they thus prohibit the [union] from requiring
[any government employee] to contribute to the
support of an ideological cause he may oppose as a
condition of holding a job as a public school

In denying plaintiffs’ claim that the entire union security
agreement was unconstitutional, the Court said:
To compel employees financially to support
their collective bargaining representative has an
impact upon their First Amendment interests. . . .
To be required to help finance the union as a
collective bargaining agent might well be thought
. . . to interfere in some way with an employee’s
freedom to associate. . . . But the judgment
clearly made in Hanson and Street is that such
interference as exists is constitutionally
justified by the legislative assessment of the
important contribution of the union shop to
the system of labor relations established by
Congress. . . .(34)

The government interests advanced by the
agency shop provision in the Michigan statute are
much the same as those promoted by similar provi-
sions in federal labor law. . . . The desirability
of labor peace is no less important in the public
sector, nor is the risk of "free riders" any
smaller. . . .(35)

The very real differences between exclusive-
agent collective bargaining in the public and
private sectors are not such as to work any great-
er infringement upon the First Amendment interests
of public employees. . . .(36)

The differences between public- and private-
sector collective bargaining simply do not trans-
late into differences in First Amendment rights.(37)

In Abood, as in Hanson and Street, the Court asserted
that the Constitution, because of the governmental interest
in industrial peace, permits the imposition of forced dues
for the limited purpose of funding the collective-bargaining
activities of certified unions. In that regard the First
Amendment rights of private and government workers do not
differ. In Street, Section 2, Eleventh of the RLA was in-
terpreted as prohibiting the imposition of forced dues to
fund unions’ political activities. In Abood, however, the
Constitution, not a statute, was held to prohibit the impo-
sition of forced dues to be used for political purposes.
Recall that in Street the Court said that if it were not for
its narrow interpretation of Section 2, Eleventh, it would
have to consider whether the Constitution would bar the use
of forced dues for political purposes under the RLA. The
Court found the necessary government action in the fact that
the RLA prohibits state right-to-work laws. In my judgment,
if it were not for its interpretation of Section 2, Elev-
enth, the Court would apply the same reasoning it used with
regard to the use of forced dues for political purposes in
Abood to RLA cases. Public-sector and RLA cases should be
thought of as being alike. In public-sector employment it is
unconstitutional for unions to use forced dues for political
purposes. In RLA cases, if the statute permitted it, it
would be unconstitutional for unions to use forced dues for
political purposes. As we will see below, that is not quite
as clear in NLRA cases. It ought to be, but it is not.

In Abood the Court again suggested some guidelines for
remedies that should be available to dissenting workers.
Such dissidents must complain as individuals, not as a
class, and a rebate scheme based on a percentage reduction
formula as in Street would be sufficient. It was left to
the unions to work out the details.

Justice Powell wrote an opinion concurring in the judg-
ment that reads more like a dissent. In my view, it consti-
tutes excellent grounds for holding both exclusive represen-
tation and union security agreements in government employ-
ment unconstitutional. Powell insisted that First Amendment
questions in public employment are much more significant
than under the RLA. He accused the Court of constructing an
invalid "two tiered" constitutional analysis(38)–the first
tier permitting forced dues for collective-bargaining pur-
poses and the second tier forbidding the use of forced dues
for political purposes. In his view everything a government
employee union does is political; therefore, the presumption
ought to be that no form of forced affiliation with a union
is constitutional in the public sector.

The ultimate objective of a union in the
public sector, like that of a political party, is
to influence public decisionmaking in accordance
with the views and perceived interests of its
membership. Whether a teachers’ union is con-
cerned with salaries and fringe benefits, teacher
qualifications and in-service training, pupil-
teacher ratios, length of the school day, student
discipline, or the content of the high school
curriculum, its objective is to bring school board
policy and decisions into harmony with its own
views. . . . In these respects, the public sector
union is indistinguishable from the traditional
political party in this country. . . .(39)

Nor is there any basis here for distinguish-
ing "collective bargaining activities" from
"political activities" so far as the interests
protected by the First Amendment are concerned.
Collective bargaining in the public sector is
"political" in any meaningful sense of the word.
. . .(40)

. . . Disassociation with a public-sector
union and the expression of disagreement with its
positions and objectives therefore lie at the
"core of those activities protected by the First
Amendment.". . .(41)

. . . For the Court to sustain the exclusivi-
ty principle in the public sector in the absence
of a carefully documented record is to ignore,
rather than respect, "the importance of avoiding
unnecessary decision of constitutional questions."
The same may be said of the asserted interests in
eliminating the "free rider" effect and in pre-
serving labor peace.(42)

According to Powell, the burden ought to be on the
state to prove any compelling government interest that would
overcome the presumption of unconstitutionality. There was
no such proof offered in Abood. Worse, under the Court’s
guidelines for a remedy, the dissident worker bears the
burden of bringing litigation to challenge union expendi-
tures of his money.
Under today’s decision, a nonunion employee who
would vindicate his First Amendment rights . . .
must initiate a proceeding to prove that the union
has allocated some portion of its budget to "ideo-
logical activities unrelated to collective bar-
gaining." . . . I would adhere to established
First Amendment principles and require the state
to come forward and demonstrate, as to each union
expenditure for which it would exact support from
minority employees, that the compelled contribu-
tion is necessary to serve overriding governmental
objectives. This placement of the burden of liti-
gation, not the Court’s, gives appropriate protec-
tion to First Amendment rights without sacrificing
ends of government that may be deemed important.(43)

Note that Powell’s recommended procedure set a zero baseline
for union expenditure of forced dues. Unions would have to
demonstrate the legitimacy of every category of expenditure
that they wished to finance from such dues.

In the first cases just discussed, the Court did not
set up firm procedural rules that unions and employers must
follow to protect the rights of dissenting workers. It only
suggested rules that might work. Unions were left free to
structure their own "internal remedies." In practice most
unions ignored the proscription against using forced dues
for political purposes. They went right on collecting 100
percent dues from nonmembers and complaining members. A
dissenting worker had to run the gauntlet of union-struc-
tured procedures to get any refund. The few unions that
instituted procedures for initial reduction of dues set an
arbitrary, small-percentage reduction from regular dues that
all dissenting workers could claim if they wished. The
Court, in those cases, said nothing at all about Box 1 and
Box 4 expenditures. In the 1980s that all changed.

Ellis v. Railway Clerks

The dissenting workers in Ellis v. Railway Clerks
(1984) were employees of Western Airlines. Western had
entered into an agency shop agreement with the Brotherhood
of Railway, Airline and Steamship Clerks (BRAC) under Sec-
tion 2, Eleventh of the RLA. Notwithstanding the earlier
RLA cases, the agency shop agreement explicitly called for
all nonmembers to pay full union dues. Dissenting workers
could request a refund after they paid the full dues. The
plaintiffs did not challenge the agency shop per se, but
they did challenge union expenditures of forced dues for all
purposes other than collective bargaining. For the first
time, Box 1 and Box 4 union expenditures were up for exami-
nation. Ellis et al. claimed that, on the basis of the
challenged Box 1 and Box 4 expenditures, they were entitled
to a refund of 40 percent of all the dues exacted from them
under the agency shop agreement. In addition, they chal-
lenged the adequacy of the union’s rebate scheme for purely
political and ideological (Box 2) expenditures.

The dissenting workers specifically challenged six
categories of expenditures: (1) the national union’s qua-
drennial convention (Box 1), (2) litigation not involving
the negotiation of agreements or settlement of grievances
(Box 4), (3) union publications (Box 1), (4) union social
activities (Box 4), (5) death benefits for employees (Box
1), and (6) the union’s general organizing activities
(Box 4).

The Court relied on its decision in Street and its two-
tiered constitutional analysis in Abood in reaching its
decision. It reaffirmed that Section 2, Eleventh permits
forced dues to be used only for collective-bargaining pur-
poses and then declared that if any other use of forced dues
were permitted by the statute, constitutional questions like
those in Abood would be raised. The government’s interest
in labor peace does not override First Amendment concerns
except for the narrow purpose of capturing free-rider bene-
ficiaries of collective bargaining by exclusive bargaining
agents.(44) In this case, however, as in Street, the Court
did not rely on the Constitution in its evaluation of the
six challenged expenditures. It relied instead on its in-
terpretation of Section 2, Eleventh. Under the RLA,

[o]nly a union that is certified as the exclusive
bargaining agent is authorized to negotiate a
contract requiring all employees to become members
of or to make contributions to the union. Until
such a contract is executed, no dues or fees may
be collected from objecting employees who are not
members of the union; and by the same token, any
obligatory payments required by a contract autho-
rized by Section 2, Eleventh terminate if the
union ceases to be the exclusive bargaining agent.
[For future reference, note that the same things
could be said in connection with the NLRA and its
Section 8(a)3.] Hence, when employees such as
petitioners object to being burdened with particu-
lar union expenditures, the test must be whether
the challenged expenditures are necessarily or
reasonably incurred for the purpose of represent-
ing the employees in dealing with the employer on
labor-management issues.(45)

Applying that test, the Court reached the following
decisions with regard to the six challenged expenditure
categories. (1) Conventions. Dissenters can be charged for
those expenditures because conventions are "essential to the
union’s discharge of its duties as bargaining agent."(46) At
such conventions, "members elect officers, establish bar-
gaining goals and priorities, and formulate overall union
policy."(47) Thus, a Box 1 expenditure is treated like a Box
3 expenditure. (2) Social activities. Dissenters can also
be charged for those activities since they are "formally
open to nonmember employees." Although they "are not cen-
tral to collective bargaining, they are sufficiently related
to it to be charged to all employees."(48) Thus, a Box 4
expenditure is treated like a Box 3 expenditure. (3) Union
publications. Since the union magazine "is the union’s
primary means of communicating information concerning col-
lective bargaining, contract administration, and employees’
rights to employees represented by BRAC," dissenting members
can be charged for everything in that publication except
political material.(49) Thus, a Box 1 expenditure is treated
as it ought to be treated; some of it can be charged to
dissenters, and some cannot. The collective-bargaining
part, yes; the political part, no. (4) General organizing
expenditures. The Court ruled that unions cannot charge
dissenting workers for union attempts to organize hitherto
unorganized employees of nonunion firms. "[W]here a union
shop provision is in place and enforced, all employees in
the relevant unit are already organized. By definition,
therefore, organizing expenses are spent on employees out-
side the collective-bargaining unit already represented."
Further, "the free rider the Congress had in mind was the
employee the union was required to represent and from whom
it could not withhold benefits obtained for its members."(50)
Here a Box 4 expenditure was treated as it ought to be. It
is not collective bargaining, so it should not be charged,
notwithstanding that it is also not political. (5) Litiga-
tion. That is another Box 1 case that was treated as it
ought to be. The Court held that if the litigation involves
the negotiation or administration of a collective-bargaining
agreement, it is chargeable to dissenting workers; otherwise
it is not. Legal expenses to challenge "the legality of the
airline industry mutual aid pact," or "litigation seeking to
protect the rights of airline employees generally in bank-
ruptcy proceedings," for example, are not chargeable.(51) (6)
Death benefits. The Court held that the issue was moot
because the dissenting workers were no longer covered. They
were not due a refund because they had enjoyed the insurance
protection while they were covered.

Justice Powell, in a decision concurring in part and
dissenting in part, argued that the Court should have clas-
sified union conventions as unchargeable to dissenting work-
ers. Taking a not uncommon example, he pointed out that at
the 25th quadrennial convention of BRAC,

a number of major addresses were made by prominent
politicians, including Senators Humphrey, Kennedy,
Hartke, and Schweiker, the Mayor of Washington
D.C., and four Congressmen. The union has not
shown how this major participation of politicians
contributed even remotely to collective

The two big losses for unions, among the six challenged
expenditure categories, were union organizing and litiga-
tion. According to one estimate, a national union’s general
organizing activity amounts, on average, to one-third of its
operating budget.(53) Although I have seen no estimates of
non-collective-bargaining litigation expenses, it has long
been common for unions to charge dissenting workers even for
the costs of defending union officers against corruption
charges. In 1991 in Lehnert v. Ferris Faculty Associa-
tion,(54) the Court added political lobbying and public rela
tions expenditures to the Ellis list of activities for which
dissenting workers may not be charged. Lehnert was a pub-
lic-sector case, but the Court’s frequent references to
Street and Ellis in the decision leave no doubt that it
considers RLA and public-sector cases to be members of the
same family.

Another big loss for unions in Ellis was the Court’s
declaration that pure rebate schemes would no longer be
permitted as remedies. Up until then the few unions that
had paid any attention to the earlier cases had taken care
of the problem by rebating dues according to a arbitrary,
small-percentage formula. All workers were charged the
regular dues; then, if a worker complained and if he sur-
vived the union’s internal appeal processes, he got a re-
bate. In Ellis the Court put a stop to that.

[T]here is language in this Court’s cases to sup-
port the validity of a rebate program. Street
suggested "restitution to each individual employee
of [a] portion of his money which the union ex-
pended. . . ." See also Abood. . . . Those opin-
ions did not, nor did they purport to, pass upon
the statutory or constitutional adequacy of the
suggested remedies. Doing so now, we hold that
the pure rebate approach is inadequate.(55)

Notice that here the Court seems to imply that the "consti-
tutional adequacy" question in Abood would apply in Ellis if
the restrictions of Section 2, Eleventh did not exist.

The Court went on to explain that rebates of money
spent on impermissible uses, even if interest is added,
amount to involuntary loans from dissident workers to the

By exacting and using full union dues, then
refunding months later the portion that it was not
allowed to exact in the first place, the union
effectively charges the employees for activities
that are outside the scope of statutory authoriza-
tion. . . . The harm would be reduced were the
union to pay interest on the amount refunded, but
[the union in this case] did not do so. Even then
the union obtains an involuntary loan for purposes
to which the employee objects.(56)

The alternative to a rebate scheme is, of course, to
reduce dues at the time of collection. Under Ellis a com-
plaining worker cannot be charged dues that will be used for
impermissible purposes. Although the Court did not explic
itly say so in this case, the only way an objector can be
free of exactions for impermissible purposes is for the
union, before it exacts any money from anyone, to explain to
all workers (because any worker could decide to be an objec-
tor) the basis for its categorization of all its expendi-
tures and then offer all who may then object an initial
reduction of a certain percentage of regular dues. (Other-
wise unions would regularly exact funds that they would have
to rebate to workers after the workers discovered that the
funds were used for impermissible purposes.) The Court
imposed just such a procedure two years later in the Hudson

It is clear that the Court thinks that RLA and public-
sector cases involving forced dues are to be treated exactly
alike. First, in Abood the Court explicitly based its ap-
proach on Hanson and Street. Second, in Ellis the Court
drew several parallels between RLA and public-sector cases,
frequently referring to Abood. Thus, for railroad and air-
line employees as well as government employees, both the
substantive decisions regarding specific expenditure catego-
ries and the procedural ban on pure rebate schemes apply.

Chicago Teachers Union v. Hudson

Chicago Teachers Union v. Hudson (1986) was another
public-sector case. The issue was the adequacy of a proce-
dure devised wholly by the Chicago Teachers Union in re-
sponse to the Court’s Abood decision. There was an agency
shop agreement between the union and the Chicago School
Board. The union had offered an advanced reduction of 5
percent of regular dues to any agency fee payer who objected
to the political uses of forced union dues. The 5 percent
figure was calculated by the union, using its records, with-
out any independent audit or confirmation. Any objector
automatically received the 5 percent reduction. Any teacher
who wanted to claim a bigger reduction had to first pay the
standard 95 percent fee and then write to the union presi-
dent to explain why she wanted a rebate. The president
would pass the claim on to the union’s executive committee;
if the claim was not settled by the executive committee, it
was passed on to the union’s executive board; finally, if
the claim was not settled by the executive board, the
union’s president would pick an arbitrator who would have
final say on the matter. Annie Lee Hudson and other teach-
ers thought that procedure was less than fair. The union
controlled every step of the procedure. There was no chance
that complaining teachers could get a fair hearing. More-
over, it was a rebate procedure.

The Court began by tying this case to Ellis:

The Ellis case was primarily concerned with the
need "to define the line between union expendi-
tures that all employees must help defray and
those that are not sufficiently related to collec-
tive bargaining to justify their being imposed on
dissenters." . . . In contrast, this case concerns
the constitutionality of the procedure adopted by
the Chicago Teachers Union, with the approval of
the Chicago Board of Education, to draw that nec-
essary line and to respond to nonmembers’ objec-
tions to the manner in which it was drawn.(57)

In Hudson the Court ruled that dissident workers have a
valid First Amendment claim, and adequate procedures must be
devised to address that claim.
Procedural safeguards are necessary . . . for
two reasons. First, although the government in-
terest in labor peace is strong enough to support
an "agency shop" notwithstanding its limited in-
fringement on non-union employees’ constitutional
rights, the fact that those rights are protected
by the First Amendment requires that the procedure
be carefully tailored to minimize the infringe-
ment. Second, the nonunion employee . . . must
have a fair opportunity to identify the impact of
the governmental action on his interests and to
assert a meritorious First Amendment claim.(58)

The union’s procedure was constitutionally defective for
three reasons. First, as in Ellis, a rebate procedure is
defective because it amounts to an involuntary loan to the
union for impermissible expenditures. Even if the amount is
small, it is still important.

For, whatever the amount, the quality of [dissi-
dent teachers’] interest in not being compelled to
subsidize the propagation of political or ideolog-
ical views that they oppose is clear. In Abood we
emphasized this point by quoting the comments of
Thomas Jefferson and James Madison about the ty-
rannical character of forcing an individual to
contribute even "three pence" for the "propagation
of opinions which he disbelieves."(59)

Second, the dissenters were not given adequate informa-
tion on which to base their decision to object.

In Abood we reiterated that the nonunion employee
has the burden of raising an objection, but that
the union retains the burden of proof. . . . Basic
considerations of fairness, as well as concern for
the First Amendment rights at stake, also dictate
that the potential objectors be given sufficient
information to gauge the propriety of the union’s
[95 percent] fee. Leaving nonunion employees in
the dark about the source of the figure for the
agency fee–and requiring them to object in order
to receive information–does not adequately pro-
tect the careful distinctions drawn in Abood.(60)

Note the implications of the foregoing passage. Before
any money can be collected from anyone, the union must pro-
vide to all potential dissenters adequate information on
which to base a decision about whether or not to dissent.
Inasmuch as all union members, as well as nonmembers, are
potential objectors, that means all workers represented by
an exclusive bargaining agent must be given such informa-
tion. After all, in an agency shop, every union member has
the option of resigning membership and becoming an agency
fee payer. All workers need to know the size of the reduc-
tion in dues that would result from resigning and paying
only the collective-bargaining-agency fee before they can
decide whether or not to do so. In an agency shop there
could be nonmembers who would not object to paying for the
union’s non-collective-bargaining activities, but that is
unlikely. Workers who endorse the full union agenda are
more likely to become regular, voluntary union members.

Third, the union’s procedure was biased because the
union president picked the final arbitrator. A proper pro-
cedure must have an impartial arbitrator.(61)

After the litigation started, the union amended its
procedure to include a 100 percent escrow of the money ex-
acted from dissidents. But not even that was enough to
satisfy the Court.

Although the Union’s self-imposed remedy
eliminates the risk that nonunion employees’ con-
tributions may be temporarily used for impermissi-
ble purposes, the procedure remains flawed in two
respects. It does not provide an explanation for
the advance reduction of dues, and it does not
provide a reasonably prompt decision by an impar-
tial decisionmaker.(62)

Even with a 100 percent escrow, the Court demanded that the
union give adequate information to actual and potential
dissenters before any money is exacted, and it demanded that
an impartial arbitrator have the final say about any disput-
ed expenditures.

In evaluating the merits of a 100 percent escrow rule,
the Court said that such a rule would deprive the union of
use of some escrowed funds for expenditures that are unques-
tionably permissible. It pointed out that an independently
audited statement explaining and quantifying a union’s ex-
penditure categories would solve that problem.

If, for example, the original disclosure by the
Union had included a certified public accountant’s
verified breakdown of expenditures, including some
categories that no dissenter could reasonably
challenge, there would be no reason to escrow the
portion of the nonmember’s fees that would be
represented by those categories.(63)

The Court concluded by summarizing its view of the
requirements of procedural due process in forced dues cases.
We hold today that the constitutional re-
quirements for the Union’s collection of agency
fees include an adequate explanation for the basis
of the fee, a reasonably prompt opportunity to
challenge the amount of the fee before an impar-
tial decisionmaker, and an escrow for the amounts
reasonably in dispute while such challenges are

In sum, the procedural due process requirements of the
Hudson decision are the following.

1. A union that is an exclusive bargaining agent and
has a union security agreement with an employer must provide
an independently audited breakdown of its expenditures as an
explanation for the fees it wishes to exact from dissenting
workers. Only expenditures for collective bargaining, con-
tract administration, and grievance adjustment, and expendi-
tures that are very closely related to those purposes, may
be used to justify such exaction. The audited breakdown and
explanation of spending must be available to all actual and
potential dissenters, which means it must be available to
all the workers the union represents. Moreover, it must be
made available to those workers before any money is exacted
from them. The union may exact as large a portion of regu-
lar union dues from any nonmember (agency shop) or financial
core member (union shop) as the independently audited state-
ment justifies.

2. If any nonmember or financial core member wishes to
dispute any portion of the fee the union tries to exact from
him, and if the amount in dispute is not obviously charge-
able, the union must escrow the disputed amount in an inter-
est-bearing account.

3. The dispute must be promptly settled by an impartial
arbitrator. The independent auditor who examines the
union’s expenditures and explanations of its proposed dis-
senters’ fee and the impartial arbitrator who settles a
dispute are different people with different tasks. Neither
the union nor the dissenters can unilaterally pick either of

Edwin Vieira, Jr., the attorney who represented the
dissenting teachers in Hudson, argues that since a union
must provide an audited adequate explanation of its proposed
dissenters’ fee before it can exact any money, the Court
effectively reversed its earlier view (in Street) that only
individual workers can complain. The procedural rules in
Hudson entitle all potential dissenters to adequate informa-
tion on which to base a decision to dissent. If that infor-
mation is not provided, all the workers entitled to receive
it would constitute a class with standing to sue.(65)

Vieira also points out that the Hudson procedures set-
tle the question of which baseline the union must use in
determining the fees it exacts from dissenters.(66) The union
in this case started with a baseline of 100 percent of union
dues from which it deducted expenditures it determined were
impermissible. The Hudson rules now force a union to start
with a zero baseline and add each expenditure that it can
adequately defend, by audited explanations, as chargeable to
dissenters.(67) That is a major gain for dissenters. The
burden of proof is placed squarely on the union to justify
every penny it exacts from dissenters. The subtraction
method employed by the Chicago Teachers Union placed the
burden of proof on dissenters to show that a disputed expen-
diture was not sufficiently related to collective bargaining
to justify charging dissenters for it.

None of the cases from Hanson to Hudson involved the
NLRA. Some commentators assumed that the substantive and
procedural rules in those cases would apply to NLRA forced
dues cases as well, and others assumed that they would not.
Two years after Hudson, the Court rendered its decision in
Beck–the first, and so far the only, NLRA forced dues case
it has decided.

Communications Workers of America v. Beck

Communications Workers of America v. Beck was initiated
in a federal district court in 1976. The dispute involved
an agency shop agreement between the Communications Workers
of America and AT&T that required all workers to pay full
union dues as a condition of continued employment. Harry
Beck and other dissenting workers brought suit claiming
that, as in RLA union security agreements, fees exacted from
dissenters could be used only to pay for the union’s collec-
tive-bargaining, contract administration, and grievance
adjustment activities.

Under the NLRA, the National Labor Relations Board
(NLRB) has initial jurisdiction in cases involving allega-
tions of unfair labor practices. Union security agreements
are permitted by Section 8(a)3 of the NLRA. That section
makes it an unfair labor practice for an employer to dis-
criminate for or against a worker on the basis of the
worker’s affiliation or nonaffiliation with a union except
if the exclusive bargaining agent and the employer have a
union security agreement. If they do, it is all right for
the employer to fire any worker who decides not to affiliate
with the union. Beck et al. did not complain to the NLRB
but instead filed suit in federal district court. Before
the Supreme Court, the union argued that the district court
should not have heard the case because it did not have prop-
er jurisdiction. In its 1988 decision the Court made short
work of that argument by pointing out that the dissenting
workers had alleged that, in using money exacted from non-
members for non-collective-bargaining purposes, the union
had breached its duty of fair representation and that dis-
trict courts have original jurisdiction in cases involving
the duty of fair representation. The union allegedly
breached its duty of fair representation by misusing dues
collected under Section 8(a)3. Therefore, the Supreme Court
held, the trial court properly heard the dissenters’ 8(a)3
claims. Interestingly, the trial court held that 79 percent
of the money exacted from the dissenting workers would have
to be refunded, with interest, because that was the percent-
age of dues used for impermissible purposes. That percent-
age was upheld throughout the litigation.

Charles Fried, President Reagan’s Solicitor from 1985
to 1989, was asked by the Court for the government’s posi-
tion in the case. Surprisingly, Fried sided with the union.
His argument had two parts.(68) First, he argued that Section
8(a)3 does not compel union security agreements; it merely
permits them. Moreover, unlike Section 2, Eleventh of the
RLA, the NLRA does not prohibit states from banning union
security agreements within their own borders. Thus, he
concluded, there is no government action behind NLRA union
security agreements. Without the necessary government ac-
tion, Beck et al. had no valid constitutional claim. Sec-
ond, Section 8(a)3 requires workers under union security
agreements to pay the "periodic dues and initiation fees
uniformly required as a condition of acquiring or retaining
membership." In Fried’s view, the clear meaning of those
words is that all workers must pay full ordinary union dues.
Dissenters are not entitled to pay less. There is nothing
in the statute, he concluded, that even remotely implies
that there are limits on what the union can do with the dues
money it receives.

The Court disagreed with Fried’s second point and thus
did not have to address his first point. As he had in
Street, Justice Brennan wrote the majority opinion.

Over a quarter century ago we held that Section 2,
Eleventh of the RLA does not permit a union, over
the objections of nonmembers, to expend compelled
agency fees on political causes.

. . . Our decision in Street . . . is far
more than merely instructive here: we believe it
is controlling, for Section 8(a)3 and Section 2,
Eleventh are in all material respects identical.
Indeed we have previously described the two provi-
sions as "statutory equivalents," Ellis v. Railway
Clerks . . . , and with good reason, because the
nearly identical language reflects the fact that
in both Congress authorized compulsory unionism
only to the extent necessary to ensure that those
who enjoy union-negotiated benefits contribute to
their cost.(69)

There can be no legitimate doubt that all the RLA
forced dues cases apply directly to NLRB forced dues cases.
Specifically, all the substantive decisions regarding the
categories of expenditures challenged in Ellis apply to NLRA
union security agreements. If the above references to
Street and Ellis are not enough to settle the question, the
following statement of the Court ought to be.
Given the parallel purpose, structure and language
of Section 8(a)3 [to Section 2, Eleventh], we must
interpret that provision in the same manner. Like
Section 2, Eleventh, Section 8(a)3 permits the
collection of "periodic dues and initiation fees
uniformly required as a condition of acquiring or
retaining membership" in the union, and like its
counterpart in the RLA, Section 8(a)3 was designed
to remedy the inequities posed by the "free rid-
ers" who would otherwise unfairly profit from the
Taft-Hartley [the 1947 amended version of the
NLRA] Act’s abolition of the closed shop. In the
face of such statutory congruity, only the most
compelling evidence could persuade us that Con-
gress intended the nearly identical language of
these two provisions to have different meanings.(70)

Fried could have argued, of course, that the Court
misinterpreted the nearly identical language in the earlier
RLA cases as well as in Beck. In the RLA cases, that proba-
bly would not have mattered because in Street the Court
recognized that there is government action in the RLA suffi-
cient to raise constitutional questions regarding the uses
of forced dues. (That action, recall, is that the RLA over-
rides state right-to-work laws with regard to employment in
the railroad and airline industries.) However, there is no
such basis for declaring government action in the NLRA. As
I explained in the sections on key statutory unionist prin-
ciples and government actions in union security, I think
there is sufficient government action in the NLRA to raise
constitutional questions, but the Court has never spoken to
the question.

Nevertheless, it is clear that the Beck decision, as it
stands, protects all nonmembers (in agency shops) and finan-
cial core members (in union shops) from having to pay fees
to unions other than for the purposes of collective bargain-
ing, contract administration, and grievance adjustment.
Moreover, under Pattern Makers v. NLRB (1985),(71) any regular
member of a union may resign at any time without notice.
Thus, all workers under NLRA union security agreements can
become nonmembers or financial core members at will and save
a large portion of the dues they otherwise would have to

Constitutional Rights and the NLRA

The issue of whether workers under the NLRA can re-
ceive constitutional, rather than mere statutory, protection
from misuse of forced union dues is very important because
the three justices who dissented in Beck–Justices Blackmun,
O’Connor, and Scalia–agreed with the union that Section
8(a)3 was misinterpreted by the majority. Moreover, al-
though he was on the Court at the time the decision was
announced, Justice Kennedy did not participate in the case.
Therefore, it is possible that in some future NLRA forced
dues case a majority of justices may agree with the dissent-
ers in this case on the interpretation of 8(a)3. If so,
only the Constitution would remain to protect dissenting
workers. Moreover, since the majority in Beck was silent on
constitutional questions (the dissent was, too), there is
some legitimate doubt about whether the procedural due pro-
cess rules of Hudson apply in NLRA cases. Recall that those
procedures were "tailored" to protect the constitutional
rights of the dissenting workers in that case.

Edwin Vieira, the dissidents’ attorney in both Hudson
and Beck, has argued that it is "childishly simple" to dem-
onstrate the necessary government action in union security
agreements under the NLRA.(72) He does so on the grounds I
outlined in the second section of this study. Only unions
with exclusive representation privileges can enter Section
8(a)3 union security agreements with employers. An employer
is forced to bargain in good faith with a union that is a
Section 9(a) exclusive bargaining agent on the question of
Section 8(a)3 union security. Both individual workers and
individual employers are thus denied, by force of the NLRA,
their common law contract rights. If that is not "govern-
mental action," what is?

In short, to suggest (as did the majority
opinion in Beck) that section 8(a)3 agreements are
merely "permissive" as against nonunion employees
is to evidence willing blindness to labor law
history and doctrine.(73)

Moreover, Vieira continues, since dissenting workers under
Section 8(a)3 are made liable for the payment of fees to
which they object, and that liability is a "duty" legally
"enforceable by discharge from employment," the fee amounts
to a governmentally imposed tax.(74) That too, is clearly
government action.

So clear are Vieira’s arguments that the NLRA consti-
tutes government action that he recommends a litigation
strategy based on constitutional rights to thwart any union
attempts to minimize the impact of Beck. He says that

every extension of "agency fee" rights that a
union demands [must] meet a strict standard of
constitutionality applied to exclusive represen-
tation. For every expenditure that a union claims
may be coercively subsidized with "agency fees,"
nonunion employees must argue that:

* The activity generating the expenditure is
not within the applicable statutory definition of
"collective bargaining" for which the union is
certified as their exclusive representative. And,

* If the activity is held to be part of such
statutory "collective bargaining," then the statu-
tory requirement that employees accept a union as
their representative for the purpose of engaging
in that activity is unconstitutional under the
First and Fifth Amendments (national level) or the
First and Fourteenth Amendments (state and local

This approach will reduce every "agency fee"
case to a challenge to exclusive representation–a
challenge the partisans of compulsory unionism
know they cannot win, and, therefore, dare not
openly face.(75)

According to Vieira, the First Amendment question in
forced dues cases concerns freedom of association, and
forced dues cases involve the Fifth and Fourteenth Amend-
ments because of due process questions. Although I agree
with Vieira that exclusive representation and union security
should be challenged on those grounds, I am less optimistic
than he appears to be about the outcome of such litigation.

Apart from the question of whether there is sufficient
government action in the NLRA to raise questions of the
constitutional rights of dissenting workers, a reasonable
argument can be made that the Hudson procedural due process
requirements apply to NLRA forced dues cases merely on the
basis of the case history from Hanson to Beck. As we have
already seen, the Court relied on Hanson and Street in
reaching its decision in Abood; it relied on Abood, Hanson,
and Street in reaching its decision in Ellis; it relied on
those same three cases in reaching its decision in Hudson;
and, finally, it relied on Street and Ellis in reaching its
decision in Beck. It is clear to me that the Court consid-
ers all those cases to be in the same family. It also seems
clear that the Court intends the Hudson procedures to apply
in NLRA cases as they plainly do in RLA cases.

Enforcement and Codification of Beck

Supreme Court decisions do not enforce themselves.
Absent congressional codification of Beck, it is up to the
Department of Labor and the NLRB to enforce the decision,
and, at least until President Bush’s April 13 announcements,
they had been dragging their enforcement feet. Bush’s exec-
utive order, however, covers only federal contractors. It
is up to the Department of Labor and the NLRB to enforce the
decision in other situations. The president’s announcement
that he had instructed the Department of Labor to propose
changes in the annual financial disclosure forms unions are
required to file under the 1959 Landrum-Griffin Act, as well
as his announcement that he had called on the NLRB to begin
to get serious about enforcing Beck, may mean that, at long
last, workers will begin to get some relief. I now turn to
the issues of enforcement and codification.


Under the NLRA, a complaint from an employee to the
NLRB first goes to the board’s general counsel, who decides
whether or not to pursue the complaint. If the general
counsel decides to proceed, the complaint is heard by an
administrative law judge (ALJ). If the parties are not
satisfied by the decision of the ALJ, the case is heard by
the five-member NLRB. Since he took office in 1990, the
current general counsel of the NLRB, Jerry Hunter, has de-
layed action on complaints to such an extent that in early
1991 National Right to Work Legal Defense Foundation attor-
neys filed a mandamus petition (a request for a court to
order an official to carry out his duties) on behalf of Alan
Strange in the U.S. Court of Appeals for the D.C. Circuit.
Immediately thereafter, Hunter began to issue decisions on
complaints and consolidate cases to facilitate resolution.
As of this writing (June 1992) there are approximately 300
cases pending. None have been heard by the NLRB itself.(76)

Perhaps none of the cases will be heard, for on May 4,
1992, the NLRB announced that, rather than settle Beck ques-
tions in its usual case-by-case fashion, it would promulgate
substantive and procedural rules that all parties would have
to follow.(77) The only other time the NLRB did that was in
1988 when it standardized eight bargaining unit definitions
for hospitals. Ordinarily, the NLRB determines whether or
not a bargaining unit proposed in a certification election
is appropriate on a case-by-case basis. The Supreme Court
upheld the NLRB’s rule making for hospital bargaining units
in 1991.(78) It seems likely that it would do so again with
regard to Beck.

Unions are not eager, of course, to abide by the Beck
decision. Their first line of resistance has been to assert
that neither the substantive nor the procedural rules devel-
oped in the earlier cases are applicable to the NLRA. Ap-
parently they want to start at square one and develop sub-
stantive and procedural rules on a case-by-case basis before
the NLRB and the courts. For example, on February 18, 1992,
the San Francisco Chronicle ran the story of one John
Nosek, an employee of the Lucky supermarket chain in Thou-
sand Oaks, California. Lucky and its exclusive bargaining
agent have a union shop agreement under which Nosek was
forced to pay full union dues. After hearing about the Beck
case, he asked the union to reduce his dues. He was told to
pay the full dues or be fired. He then filed a complaint,
which is still pending, with the NLRB. In the same article
the Chronicle reported that

union lawyers contend that the rules are far from
clear. Much of the legal battle concerns whether
a worker should be forced to pay the costs of
recruiting, organizing workers at another location
or negotiating contracts at other bargaining

. . . "Unions do what they think they are
supposed to do, and then they are told to do some-
thing else. . . . They just want to get it right,"
said San Francisco labor attorney Marsha Berzon.(79)

It appears to me that the "union lawyers" mentioned in the
Chronicle article either are not familiar with the case
history or have chosen to ignore it. After Ellis, for exam-
ple, there can be no legitimate question about "recruiting,
organizing workers at another location or negotiating con-
tracts at other bargaining units." Those are clearly imper-
missible uses of forced union dues.

Labor attorneys are not the only people who do not, or
may not want to, understand the Beck decision. Many of the
regional offices of the NLRB have staff who act as if they
have never heard of Beck. The National Right to Work Com-
mittee (NRTWC) hired a private investigative firm, Associat-
ed Investigators, Inc., to call NLRB offices across the
country, pose as workers covered by union security agree-
ments, and ask for advice on the rules governing union mem-
bership and forced union dues. On July 31, 1989, Frank
Crumbley, the investigator in charge of the case, issued a
report of the investigation that has been published, togeth-
er with other related material, by the NRTWC.(80) Crumbley
and his staff contacted 48 NLRB regional and resident offic-
es across the country. In states with right-to-work laws,
of course, the forced membership and forced dues issues are
moot. Nevertheless, some NLRB offices in those states were
called along with offices in non-right-to-work states. In
the latter, 55.9 percent of the offices contacted incorrect-
ly asserted that workers can be forced to be regular union
members; 72.4 percent of the offices in non-right-to-work
states gave inaccurate information about the amount of dues
that could be exacted from dissenting workers; and 48.3
percent of offices in non-right-to-work states gave wrong
information on both forced membership and forced dues. With
only two exceptions, all the offices called in right-to-work
states gave accurate answers to the callers’ questions.(81)

The NLRB regularly gives out misinformation in writing
as well as in answer to telephone calls. The NLRB has a
model union shop clause, for example, in which it recommends
language that unions and employers should incorporate in
their collective-bargaining contracts. Even now, after Beck
and related cases, the NLRB’s model reads as follows:

It shall be a condition of employment that all
employees of the employer covered by this agree-
ment who are members of the union in good standing
on the effective date of this agreement shall
remain members in good standing and those who are
not members on the effective date of this agree-
ment shall on the thirtieth day (or such longer
period as the parties may specify) following the
effective date of this agreement, become and re-
main members in good standing in the Union. It
shall also be a condition of employment that all
employees covered by this agreement and hired on
or after its effective date shall, on the thirti-
eth day following the beginning of such employment
(or such longer period as the parties may specify)
become and remain members in good standing in the

There is nothing in the model contract clause that
tells workers they have the option of not being regular
union members. Under General Motors, new workers automati-
cally have the right to opt for financial core membership.
The model strongly suggests the opposite. Further, under
Pattern Makers, any regular member in good standing can
resign and become a financial core member at will without
sacrificing continued employment. Finally, there is no
mention in the model of the right of workers to reduce the
dues they must pay by opting out of all non-collective-bar-
gaining activities of the union.

In a pamphlet entitled "The National Labor Relations
Board and You," in a section entitled, "What Are Your Rights
as an Employee under the NLRA?" the NLRB states, "[T]he
union and employer, in a State where such agreements are
permitted, may enter into a lawful union security clause
requiring employees to join the union."(83) Now, if "join"
is interpreted to mean "become a financial core member," the
assertion is correct. But the clear implication is that
workers can be forced to become regular members. They can-

President Bush’s Executive Order 12800 specifies the
language that must be used in the Beck notices that federal
contractors must post throughout their work sites.

Under Federal law, employees cannot be re-
quired to join a union or maintain membership in a
union in order to retain their jobs. Under cer-
tain conditions, the law permits a union and an
employer to enter into a union-security agreement
requiring employees to pay uniform periodic dues
and initiation fees. However, employees who are
not union members can object to the use of their
payments for certain purposes and can only be
required to pay their share of union costs relat-
ing to collective bargaining, contract administra-
tion, and grievance adjustment.

If you believe that you have been required to
pay dues or fees used in part to support activi-
ties not related to collective bargaining, con-
tract administration, or grievance adjustment, you
may be entitled to a refund and to an appropriate
reduction in future payments.(84)

The notice could be improved by adding that, under Pattern
Makers, any worker who is already a union member can become
a nonmember at will. Nevertheless, the NLRB would be well
advised to incorporate the prescribed notice language in its
future pamphlets and publications explaining worker rights
under the NLRA.

On November 15, 1988, the general counsel of the NLRB,
Rosemary Collyer, published guidelines that all NLRB region-
al directors, officers-in-charge, and resident officers
should employ in enforcing the Beck decision. She included
all the substantive rules of Ellis, added a proscription of
charging for political lobbying, and outlined a modified
version of the due process rules of Hudson. She said she
assumed that the Ellis and Hudson rules would apply, al-
though, in her mind, that would depend on future decisions
of the NLRB and the courts. Her departures from Hudson are
alarming. First, she would allow a union, on its own, to
decide whether it expends funds for impermissible purposes.
If it does, then it must notify nonmember employees that
they may object to paying full dues. If they object, they
will be charged a reduced fee calculated by the union alone.
If they object to the reduced fee, the union then must offer
to give a detailed audited explanation. The Hudson rule is
that all workers must receive an audited, detailed explana-
tion before the union exacts any money from anyone.

There is no guarantee that the guidelines will be fol-
lowed. For example, on October 31, 1991, David G. Heilbrun,
the ALJ in a dispute between one Peter Weissbach and the
American Federation of Television and Recording Artists
(AFTRA), allowed AFTRA to charge Weissbach for its organiz-
ing and political lobbying expenses.(85) Heilbrun pointed out
that the Court’s words in Beck (at the conclusion of the
majority opinion) were that unions could charge for activi-
ties necessary to "performing the duties of an exclusive
representative of the employees in dealing with the employer
on labor-management issues."(86) According to Heilbrun, la-
bor-management issues include more than just collective
bargaining. He completely ignored the case history leading
to Beck and the wording of the majority opinion before the
summary statement he quoted.

When the NLRB promulgates its substantive and procedur-
al Beck rules, Collyer’s guidelines will be superseded; and,
unlike the guidelines, the rules will be binding on all
ALJs. Whether that will translate into effective enforce-
ment depends on the content of the rules and whether they
are obeyed. At a minimum, the NLRB’s Beck rules ought to
include all the substantive and procedural protections
spelled out by the Court in all of the cases from Hanson to
Beck. If they do, there will be less need for Congress to
codify Beck.

Secretary of Labor Lynn Martin’s proposed changes in
the annual financial disclosure forms that all unions must
file under the 1959 Landrum-Griffin Act would simplify the
enforcement of Beck. At present, those forms require that
unions report such categories of expenditures as officers’
salaries, office and administrative expenses, and grants.
Martin would require reports on the following categories of
expenditures: contract negotiation and administration, orga-
nizing, safety and health, strike activities, political
activities, lobbying and promotional activities, and


There have been two unsuccessful attempts in Congress
to codify the Beck decision. Both attempts were defeated by
congressmen and senators who have long histories of support-
ing the political agenda of labor unions.

The first attempt was H.R. 2589, the "Workers’ Politi-
cal Rights Act of 1989," which was proposed as an amendment
to the Federal Election Campaign Act (FECA) of 1971. Under
FECA both unions and businesses are forbidden to contribute
money directly to candidates for federal public office.
They can form political action committees (PACs), which can
make limited dollar contributions to candidates, but a PAC
can be funded only by voluntary contributions. A union PAC,
for example, cannot be funded with regular union dues. Each
union member must voluntarily contribute money, separate
from union dues, to the PAC.

But, there is an enormous loophole in the law, which
unions have routinely exploited. Unions can make in-kind,
rather than dollar, contributions to political campaigns,
and the in-kind contributions can be paid for with union
dues. For example, union-paid staff can undertake voter
registration, education, and turnout campaigns that favor
particular candidates. They can man telephone banks and
walk the precincts on behalf of union-endorsed candidates.
They "donate" their time to politics, but they continue to
be paid by the union. Union dues can also be used to pay
for "internal union communications" (propaganda aimed at
workers represented by the union) that favor particular
candidates. Moreover, the overhead costs, staff salaries,
rent, utilities, and postage involved in operating union
PACs can be paid for by union dues.(88) A large portion of
union dues is paid involuntarily. If workers knew of their
Beck rights, and if those rights were enforced, unions would
have far less dues money to spend in those ways.

The Workers’ Political Rights Act of 1989 would have
prevented unions from using any dues money for political
purposes unless they informed, and annually reminded, all
the workers they represented of their Beck rights. The bill
specified the wording that would have to be used, and it
included the Hudson due process procedural rules. The bill
was never debated on the floor of the House of Representa-
tives because it was quashed in committee.

The second attempt to codify Beck took place in the
U.S. Senate in July 1990. The codification was a proposed
amendment to S. 137, the "Senate Election Campaign Act,"
which was under consideration in the Senate. The latter was
itself a proposed amendment to the FECA. Sens. Orrin Hatch
(R-Utah) and Mitch McConnell (R-Ky.) were the chief propo-
nents of the codification. The provisions of their amendment
were essentially the same as those of the Workers’ Political
Rights Act that had failed in the House a year earlier. The
Hatch-McConnell amendment was defeated on July 31, 1990, by
a vote of 59 to 41. The chief opponents of the amendment
were Sens. Howard Metzenbaum (D-Ohio) and David Boren (D-

Senator Boren proposed his own amendment to "codify"
Beck, which passed by a vote of 57 to 43. In the end, the
entire Senate Election Campaign Act died with the adjourn-
ment of the 101st Congress, so Senator Boren’s codification
of Beck never became law. Nevertheless, a good sense of the
resistance to true codification of Beck in Congress can be
gained from examining Boren’s proposed codification.

First, Boren would return to the 100 percent baseline
method of calculating forced dues, and he would allow deduc-
tions only for political purposes. The Box 1 and Box 4
expenditures disallowed in Ellis and in Lehnert would be
chargeable to dissenters. Second, Boren would allow nation-
al unions to apply uniform percentage reductions to all
dissenters. That was precisely the process overturned in
Hudson. Third, Boren would allow the union, "using such
allocation methods that are recognized by independent certi-
fied public accountants as generally acceptable with respect
to nonprofit organizations, taking into consideration the
special problems and functions of a labor organization," to
determine unilaterally the uniform percentage reduction.(89)
That is a far cry from the audit by an independent certified
public accountant called for in Hudson. Only Boren and
Metzenbaum know for sure what could sneak in under the ru-
bric "the special problems and functions of a labor organi-
zation." Fourth, Boren would compel a worker to complain
before "an adequate explanation of the organization’s method
of calculating" the charged fee is offered.(90) In Hudson an
audited adequate explanation must be given to all workers
before any dues can be collected. Finally, Boren’s amend-
ment provided that

[t]he requirements of [this amendment] are in lieu
of any requirements limiting the financial obliga-
tions of objecting employees under any other pro-
visions of Federal law (including the National
Labor Relations Act, as amended, and the Railway
Labor Act, as amended).(91)

Boren’s amendment would override the Court’s interpretations
of Section 2, Eleventh and Section 8(a)3. Only the ambigu-
ous language of Boren’s amendment to the FECA would remain
to protect RLA and NLRB workers. Only government workers
would then be protected by the case history.

The NLRB is now formulating its substantive and proce-
dural rules for Beck disputes. It will be interesting to
see which model it follows. Will it come up with Boren-
style rules or Hatch-McConnell-style rules, or will it come
up with something in between” When those rules are promul-
gated, will they be contested, and if they are contested,
what will the Court have to say about them” We can only
wait and see.


How significant is the Beck decision” Unionists say it
is insignificant, yet they act as if it is the end of their
world. Their response to President Bush’s April 13, 1992,
executive order reflected both views. They decried the
executive order, asserting that Bush was trying to destroy
the union movement, yet they also claimed that the order
would have little effect on their political activities.
After the 1988 decision, most unionists asserted it would
have little effect. Perhaps that was because they thought
no one would enforce it. Robert E. Funk, associate general
counsel for the United Food and Commercial Workers, for
example, said in December 1989, "We’re not finding any big
revolt out there." Only a "handful" of requests for reduced
dues had been received by his union. Moreover, he declared,
those who do request a refund would get at most a 20 percent
reduction in dues. He asserted that his union spends only
that amount on impermissible purposes.(92) It may; I do not
know. But in Beck the amount of impermissible expenditures
was 79 percent; in Ellis the Box 1 and Box 4 expenditures,
to say nothing of the purely political expenditures of Box
2, amounted to 40 percent of regular dues; and in Lehnert a
90 percent refund was granted by the trial court.

Notwithstanding his charge of hypocrisy in response to
President Bush’s executive order, Lane Kirkland, president
of the AFL-CIO, predicted that the order would have "little
or no effect on our political processes or our participation
in the political process."(93) On the other hand, Reed Lar-
son, president of the National Right to Work Committee,
characterized the Beck decision as "Harry Beck’s Earth-
quake."(94) The Bush administration officially estimated the
impact of the executive order to be $2.4 billion annually.(95)
The actual amounts involved cannot be known until the order
is enforced and actual data are collected. My guess is that
the "earthquake" characterization of the decision is not far
off the mark.

The expected compliance costs (accounting and legal
costs, not the dollar amount of impermissible charges that
might have to be refunded) that unions would have to bear if
Beck were rigorously enforced are so huge that at least two
practitioners in the field have recommended that Congress,
in RLA and NLRA cases, and state legislatures, in state and
local government employment cases, adopt an "85 percent
solution."(96) That is, they recommend that the relevant
statutes be amended to provide a uniform reduction of 15
percent to all dissenting workers no matter what the facts
of the individual case may be. At least in the public-sec-
tor cases, it is almost certain the Court would declare such
a statute unconstitutional.

If the NLRB promulgates rules that rigorously enforce
the Beck decision, incorporating the Ellis and Lehnert list
of permissible and impermissible expenditures along with the
Hudson procedural protections, I think that many unions may
simply choose to drop their union shop and agency shop
agreements. The compliance costs may make security agree-
ments inefficient for the unions. If that is the eventual
outcome, the long court battle, waged since 1956 by workers
seeking freedom from forced dues association with unions,
will have been won. Only exclusive representation would
remain to deny workers their freedom to choose.

Most workers do not know the details of labor law.
They rely on unions and, to a smaller extent, employers to
explain their rights to them. In many cases it is not in
the interest of unions (and many employers) to explain work-
er rights accurately. Workers under union shop agreements,
for example, do not have to join the union that represents
them, even as financial core members, until after their
probationary period on the job (usually 30 days). Neverthe-
less, at NUMMI, the joint venture between General Motors and
Toyota in Fremont, California, newly hired workers are
charged full union dues from day one. Just as bad, each new
hire is presented with a card to sign that authorizes the
employer to deduct "voluntary" money contributions to the
United Auto Workers’ PAC fund. No explanation is given; the
card is just one of several papers, forms, and cards to be
signed at the start of work. Most new workers are probably
unaware of the nature of the authorization they sign. Those
who are aware, and who would otherwise protest, are coaxed
to go along by peer pressure.

Peer pressure, and all that it entails, may make en-
forcing Beck very difficult even if the NLRB’s rules, and
any congressional codification, turn out to reflect accu-
rately the Supreme Court’s substantive and procedural hold-
ings in the forced dues case history. It is easy for union-
ists subtly to suggest that any dissenting worker will get
undesirable job assignments, be denied promotions and trans-
fers, and be isolated and shunned. No new worker wants to
begin by identifying himself as a dissident. If he does, he
may not even make it through his probationary period. Under
forced unionism, the probationary period is used not just
for the employer to determine whether a new worker can do
the job; it is also used for the union to see whether the
worker will become an adversary. Short of abolishing exclu-
sive representation, and all that goes with it, there may
not be an effective way to overcome the insidious coercion
of peer pressure.

Given that the federal government has created this
coercive situation in the first place, it is the responsi
bility of the Department of Labor and the NLRB to mitigate
at least some of the coercion by informing workers of their
job-related rights in this complex legal context. It is
also the responsibility of those agencies, and the courts,
to enforce those rights. But government agencies respond to
political forces. Their budgets are controlled by Congress,
and agency bureaucrats are loath to antagonize their politi-
cal patrons. As long as politicians of both political par-
ties are dependent on the organized monetary and in-kind
political support that unions have long been able to supply,
justice will be denied dissenting workers who want simply to
be left alone.


(1) Federal Register 57, no. 75 (April 17, 1992): 14244-71.

(2) Bureau of National Affairs, Labor Relations Reporter 139
(April 20, 1992): 469.

(3) John Harwood and Albert R. Karr, "Bush Orders Curb on
Unions’ Political Funds," Wall Street Journal, April 14,

(4) NLRB v. Jones and Laughlin Steel Corporation, 301 U.S.
1, at 45 (1937).

(5) J. I. Case Co. v. NLRB, 321 U.S. 332, at 338 (1944).

(6) Dickman, Howard, Industrial Democracy in America
(LaSalle, Ill: Open Court, 1987), pp. 279-82.

(7) Steele v. Louisville and Nashville R. R. Co., 323 U.S.
192, at 208 (1944).

(8) Ibid., at 198.

(9) Schechter Poultry Corp. v. United States, 295 U.S. 495

(10) The Bituminous Coal Conservation Act of 1935, August 30,
1935, c.824, 1-23, 49 Stat. 991 (sections 801-827 of this
title were repealed by Act of April 26, 1937, c.127, 20(a),
50 Stat. 90).

(11) Carter v. Carter Coal Co., 298 U.S. 238, at 311 (1936).

(12) Jones & Laughlin, at 41.

(13) Ibid., at 103.

(14) NLRB v. General Motors Corp., 373 U.S. 734, at 742

(15) It is not only free riding that concerns the unions, of
course, but the possibility that, absent compulsory repre
sentation, employers might bargain more favorably with non
union than with union members–perhaps to "divide and con
quer." Other provisions of the NLRA forbid that practice,

(16) NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958).

(17) Anna DuVal Smith and John E. Drotning, "Fair Share Fees:
Theory, Law and Implementation," Labor Law Journal 39, no. 8
(August 1988): 464-70.

(18) 45 U.S.C. 152 (1988), at 651.

(19) Railway Employes’ Dept. v. Hanson, 351 U.S. 225, at 232

(20) Ibid., at 233.

(21) Ibid., at 235.

(22) Ibid.

(23) Ibid., at 238. Emphasis added.

(24) Machinists v. Street, 367 U.S. 740, at 749 (1961).

(25) Ibid.

(26) Ibid., at 763-64.

(27) Ibid., at 767.

(28) Ibid., at 768-70.

(29) Ibid., at 775.

(30) On the appropriate method of calculating permissible
forced dues, see Edwin Vieira, Jr., "From the Oracles of the
Temple of Janus: Chicago Teachers Union v. Hudson," Govern
ment Union Review 7, no. 3 (Summer 1986): 1-37; and Edwin
Vieira, Jr., "Communications Workers of America v. Beck: A
Victory for Nonunion Workers Already under Attack," Govern
ment Union Review 11, no. 2 (Spring 1990): 1-29.

(31) Street, at 790.

(32) Abood v. Detroit Board of Education, 431 U.S. 209, at
233 (1977).

(33) Ibid., at 235.

(34) Ibid., at 222.

(35) Ibid., at 224.

(36) Ibid., at 230.

(37) Ibid., at 232.

(38) Ibid., at 254.

(39) Ibid., at 256-57.

(40) Ibid., at 257.

(41) Ibid., at 258.

(42) Ibid., at 262. Emphasis added.

(43) Ibid., at 263-64.

(44) Ellis v. Railway Clerks, 466 U.S. 435, at 447 (1984).

(45) Ibid., at 447-48.

(46) Ibid., at 449.

(47) Ibid., at 488.

(48) Ibid., at 449.

(49) Ibid., at 450.

(50) Ibid., at 452.

(51) Ibid., at 453.

(52) Ibid., at 459.

(53) Jan W. Henkel and Norman J. Wood, "Limitations on the
Uses of Union Shop Funds after Ellis: What Activities Are
‘Germane’ to Collective Bargaining?" Labor Law Journal 35,
no. 12 (December 1984): 744.

(54) Lehnert v. Ferris Faculty Association, 111 S.Ct. 1950

(55) Ellis, at 443.

(56) Ibid., at 444.

(57) Chicago Teachers Union v. Hudson, 475 U.S. 292, at 294

(58) Ibid., at 302-3.

(59) Ibid., at 305.

(60) Ibid., at 306. Emphasis added.

(61) Ibid., at 307.

(62) Ibid., at 309.

(63) Ibid., at 310.

(64) Ibid.

(65) Vieira, "Chicago Teachers Union," p. 7.

(66) Ibid., pp. 8-11.

(67) Although the rules are clear, it is not clear that they
are being enforced. The relevant state agencies appear to
have been as reluctant to enforce Hudson as the NLRB has
been to enforce Beck.

(68) Charles Fried, Order and Law (New York: Simon &
Schuster, 1990), pp. 175-82.

(69) Communications Workers of America v. Beck, 487 U.S.
7435, AT 745-56 (1988).

(70) Ibid., at 752-54.

(71) Pattern Makers v. NLRB, 473 U.S. 95 (1985).

(72) Vieira, "Communications Workers," p. 24.

(73) Ibid., p. 26.

(74) Ibid., pp. 13, 23.

(75) Ibid., pp. 28-29. Emphasis in the original.

(76) 139 LRR 466 (4-20-92).

(77) 140 LRR 45 (5-11-92).

(78) American Hospital Association v. NLRB, 111 S.Ct. 1539

(79) Reynolds Holding, "Teenager Balks at Paying Union Dues,"
San Francisco Chronicle, February 18, 1992.

(80) National Right to Work Committee, An investigation of
Government Disinformation (Springfield, Va.: NRTWC, 1989).

(81) Ibid., p. 2.

(82) Ibid., Appendix B.

(83) NLRB, "The National Labor Relations Board and You," n.d.

(84) Office of the Press Secretary, White House, April 13,
1992, Executive Order, "Notification of Employee Rights Con
cerning Payment of Union Dues or Fees," pp. 1-2.

(85) Case 36–CB–1491, 1523.

(86) Ibid., p. 6.

(87) 139 LRR 468 (4-20-92).

(88) Congressional Record, July 31, 990, p. S 11153.

(89) Ibid., p. S 11157.

(90) Ibid.

(91) Ibid.

(92) 123 LRR 462 (12-11-1989).

(93) 139 LRR 469 (4-20-92).

(94) Reed Larson, "Harry Beck’s Earthquake," Policy Review 49
(Summer 1989): 74-76.

(95) 139 LRR 467 (4-20-92).

(96) William H. Volz and David Costa, "A Public Employee’s
‘Fair Share’ of Union Dues," Labor Law Journal 40, no. 3
(March 1989): 131-37.

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