Legal Strategy and Progress
In 1971 in a confidential memorandum, Lewis F. Powell, Jr., who later became a Justice of the U.S. Supreme Court, told the U.S. Chamber of Commerce:
“American business and the enterprise system have been affected as much by the courts as by the executive and legislative branches of government.“Three years before Justice Powell’s warning, we realized how important court action is in our battle to free the working people of America from compulsory unionism and established the National Right to Work Legal Defense Foundation.
Our Foundation’s program is modeled after the successful program of the NAACP Legal Defense Fund. In the early 1950’s, when the NAACP was stalled in Congress, they filed a series of coordinated legal actions, and by taking those with the best potential to the U.S. Supreme Court, they were able to change the law.
That’s exactly what we are doing with Right to Work issues through the Foundation’s program.
We know that hundreds of millions of dollars of union dues, almost 80% of which are collected from employees who will be fired if they don’t pay, are used to make union officials the strongest political force in the country. Employees who suffer political spending abuses are deprived of their basic constitutional rights as they are literally forced to support someone else’s politics: the candidates and causes favored by union officials.
The Foundation has concentrated on setting legal precedents that offer effective remedies to large numbers of employees to stop the use of their compulsory dues for political and ideological activities.
Back in 1968, the situation looked pretty bleak for any hopes to curb union political spending abuses. In 1961 the U.S. Supreme Court had decided International Association of Machinists v. Street in which the high court had disapproved of union political spending of compulsory dues but left objecting workers without any real legal remedies against the abuse.
By 1973 the situation had, if anything, worsened. In our case, Reid v. United Auto Workers, abused employees petitioned the U.S. District Court to devise an effective remedy for their objections to the UAW political spending of their dues. Instead, the Court ordered them to rely upon the union’s internal rebate procedure to seek refunds. This District Court opinion was upheld by the U.S. Court of Appeals for the 10th Circuit and after careful review we decided that Reid was not the best case to appeal to the U.S. Supreme Court on this issue.
This left the union officials in charge of determining the amount of political spending they did. The fox had been judicially approved to guard the chicken coop; union officials could prevent judicial inquiry into their spending practices simply by setting up phony rebate procedures.
Despite the setback in Reid, our Foundation attorneys knew that they still had a basic constitutional principle on their side, one which we were convinced could eventually expand into effective judicial remedies for coercion-abused employees.
Unions Fight Abood Public Sector Precedent
Our first challenge to compulsory union fees in public employment reached the U. S. Supreme Court in Abood v. Detroit Board of Education in 1977. In this case, where we represented more than 600 public school teachers, the Court ruled that compulsory fees violate public employees’ First Amendment rights and that the fee charged could only be used for the union’s actual cost of collective bargaining and must not include union expenses for political, ideological, and other purposes.
Most union officials completely ignored the Court’s clear intent in the Abood decision. They readily agreed that somewhere between 1 and 5 percent of dues was not used for collective bargaining. They continued to insist that the compulsory fee be 100% of the amount of union dues and set up elaborate, time consuming processes for nonmembers to request a refund of the non-collective bargaining cost.
One arrogant public sector union, a Communications Workers of America local in New Jersey, decided that the refundable amount was $.01 (one cent) and insisted that the request for the refund be sent to the union by Certified Mail!
For most public employees, the small amount of money and the time consuming process simply was not worth the time, trouble, and harassment.
While we battled these delaying tactics by union officials who were trying to neutralize the Abood case precedent, another Foundation-supported legal action in the private sector reached the U.S. Supreme Court and provided a breakthrough for public employees also.
The Ellis Breakthrough
A major class action suit was filed on behalf of Howard Ellis, Allan Fails, and over 200 other Western Airlines’ employees who objected to being coerced to support the political activities of the Brotherhood of Railway, Airline and Steamship Clerks (BRAC) union. The plaintiffs also protested against having to use the union’s kangaroo court rebate procedure to seek refunds of fees illegally spent.
The officials of the union sought to have the suit dismissed, on the basis of the Reid decision, so as to give themselves a free hand with the refund question. Foundation attorneys achieved their first major breakthrough here when U.S. District Court Judge Leland Nielsen ruled that the union’s rebate procedure improperly provided refunds only for certain political activities rather than for all union activities unrelated to collective bargaining.
The court held that BRAC had spent compulsory fees for a variety of illegal purposes: entertainment expenses for union bosses, recruiting new members into the union, union organizing efforts in other companies, union propaganda publications, convention expenses, charitable (ideological) contributions, plus union political lobbying and contributions.
In addition to rejecting the union’s sham rebate procedure, Judge Nielsen also ruled that the individual employees objecting to the union’s illegal spending practices were entitled to bring a class action suit for all other employees similarly situated. This was the first time a class action was permitted against union spending abuses.
Finally, on January 21, 1976, the real precedent-setting breakthrough sought by Foundation attorneys came through. Judge Nielsen granted the Foundation’s motion for interlocutory summary judgment, holding that the union’s use of compulsory fees for any purpose unrelated to collective bargaining is illegal.
The union appealed our District Court victory in the Ellis case to the U.S. Court of Appeals for the 9th Circuit and the Court of Appeals, with one judge dissenting in our favor, based in part on the 10th Circuit’s decision in Reid, reversed the District Court’s decision. This time, however, because of the strength of the District Court opinion, and the dissent, we decided that Ellis was the right case to appeal to the U.S. Supreme Court.
In April 1984 the Ellis v. Brotherhood of Railway, Airline and Steamship Clerks, AFL-CIO case reached the U.S. Supreme Court for a decision. The Supreme Court upheld Judge Nielsen’s ruling unanimously 9 to 0, ruling that “the union cannot be allowed to commit dissenters’ funds to improper uses — even temporarily.”
The Ellis case, which took ten years to reach the U.S. Supreme Court, was a major breakthrough for the Right to Work Foundation.
Unfortunately, after the Ellis decision, several cases in rapid succession were decided against employee plaintiffs because the Supreme Court had failed to define the procedural, due process rights of employees whose constitutional rights were violated.
Hudson Establishes Due Process Standards
This is the significance of our victory in our major Supreme Court case in March 1986, Annie Lee Hudson v. Chicago Teachers Union. Again, we represented a group of public school teachers who opposed paying compulsory fees to union officials.
In its decision in Hudson, the U.S. Supreme Court for the first time gave employees the right to due process of law in determining the amount of the forced agency fee they can be required to pay.
In that case, Chicago school teachers challenged the union’s scheme for determining the amount of the fee they were charged and objected to the union’s use of the fee for political spending and anything other than collective bargaining.
The District Court ruled against the independent teachers and the Foundation appealed to the U.S. Court of Appeals for the 7th Circuit. The Court of Appeals reversed the District Court and the union appealed to the U.S. Supreme Court.
And again, the Supreme Court ruled 9 to 0 that it is unconstitutional to use compulsory dues for political activity, ideological causes, recruiting new union members, organizing employees, etc. — and the Court provided dissident teachers with “due process of law” protection in the determination of the size of the fee they can be compelled to pay.
Subsequently, the union attorneys argued that this decision only applied to public employment.
Beck Extends Protections
In March of 1979 in the Foundation’s case Beck v. Communication Workers of America, U.S. District Court Judge C. Stanley Blair found it unconstitutional for private sector unions to collect or spend compulsory fees for any purpose other than collective bargaining, contract administration or grievance processing. The court disallowed 79% of the forced dues.
The lawyers for CWA and AFL-CIO appealed to the U.S. Court of Appeals (Fourth Circuit) where the panel ruled 2 to 1 to uphold the victory for the employees. Then the union lawyers demanded and got a rehearing before all 10 judges of the Circuit. The result was a 6 to 4 decision upholding the employees. The union then filed a petition for review by the U.S. Supreme Court.
The case was decided by the U.S. Supreme Court in June of 1988 and again the Court applied the remedies we had established in the public sector and under the Railway Labor Act so that the precedent in these cases extends to the more than 44,000,000 employees who are covered by the National Labor Relations Act. The decision was 5 to 3 for the employees, with one justice abstaining.
Despite these U.S. Supreme Court victories, local judges who are sympathetic to union interests are still allowing unions to include expenses which are clearly not legal in compulsory fees.
Lehnert Narrows Permissible Union Charges
The Foundation’s U.S. Supreme Court victory in Lehnert v. Ferris Faculty Association came in 1991. This case consolidates our previous victories by narrowly defining what charges can be included in the compulsory representation fee and again confirming this basic principle of law.
In Lehnert the Court established a three-part standard for determining whether a union can charge nonmembers for an expense without infringing upon the nonmembers’ First Amendment rights.
The importance of this cannot be underestimated. In 1992, in another Foundation case, the Indiana State Court of Appeals reversed its own earlier opinion against us (in Albro v. Indiana Education Association). Actually, the new opinion, which was confirmed by the Indiana Supreme Court, followed our Lehnert Supreme Court decision and disallowed teacher union charges for lobbying, political and charitable contributions, public relations, litigation, “offensive” or “defensive” organizing, members-only benefits, and state and national affiliate expenses.
Bloom Rewrites the Contract
Winning in the U.S. Supreme Court does not change the wording of the law or the wording of union contracts. The U.S. Supreme Court’s decisions in Ellis and Beck did not change a single word of the National Labor Relations Act, nor for that matter did it change the compulsory unionism bias of the National Labor Relations Board or the Board’s bureaucracy.
In July, 1994, in Bloom v. National Labor Relations Board, for the very first time, we were able to get the 8th Circuit Court of Appeals to order that a union contract actually be rewritten to take out the language requiring full union membership as a condition of employment and we got the court to recognize that the National Labor Relations Board was a “co-conspirator” with the unions in the scheme to deprive employees of their rights.
This was a tremendous breakthrough because in far too many cases when employees ask about their right not to become a union member, the union just shows them the contract which says they must and that is the end of the discussion. The National Labor Relations Board, in a 35-year old decision called Keystone Coat, had ruled that such “full membership” clauses in contracts were permissible and had refused to change its ruling in light of our U.S. Supreme Court victory in the Beck case.
The Bloom decision represents a major breakthrough for the Foundation’s program because it, for the first time, recognizes that the government — the National Labor Relations Board — is a guilty party in depriving employees of the rights it is charged by law with protecting, and because it actually orders that the union contract be rewritten to bring its provisions in compliance with the U.S. Supreme Court’s decision in the Beck case.
The potential to use this new precedent is enormous. If it is fully exploited, it will have a very significant impact on the ability of union officials, employers and the government to prevent workers from learning about the rights established for them by earlier National Right to Work Foundation cases.
Hohe Expands the Class and the Refund
Since 1988, National Right to Work Foundation attorneys have represented Pennsylvania state employees in federal court in Hohe, et al. v. Robert P. Casey, Governor, Commonwealth of Pennsylvania, et al, a case which may well serve as the precedent to break the back of union control in the public sector and dramatically reduce the financial resources union officials use to manipulate public policy.
The history of this case and its settlement represent several major breakthroughs for the National Right to Work Legal Defense Foundation.
They are based firmly on the building blocks we put in place through our U.S. Supreme Court victories in Abood (1976), Hudson (1986) and Lehnert (1991).
Under the negotiated settlement in early 1995, the American Federation of State County, and Municipal Employees, AFL-CIO, agreed to refund, with interest, more than eight million dollars to more than 57,000 Pennsylvania state employees.
The Hohe case has profound implications for our ability to assist employees, who are not union members but who are required as a condition of continued employment to pay fees to the union, in resisting the use of these fees for political, ideological and other non-representation purposes.
Several Problems Remain
All of these cases demonstrate three very important aspects of the Foundation’s program.
First, that the U.S. Supreme Court victories are the beginning not the end of the battle. The unions’ attorneys and judges who are frequently beholden to union political power will continue to abuse the rights of workers. A key factor in making these decisions meaningful to the working people of America and, in the process, reducing union political influence over society is vigorous enforcement of the legal precedents won in the Supreme Court.
Secondly, winning in the Court does not change the wording of the law or of union contracts. The U.S. Supreme Court’s decisions in Ellis and Beck did not change a single word of the National Labor Relations Act, nor for that matter did it change the pro-compulsory unionism bias of the National Labor Relations Board or its bureaucracy. (The Board entered the Beck case when it was before the U.S. Supreme Court and opposed the National Right to Work Foundation’s position.)
Third, other employees must learn about the rights we have won for them and then assert their rights by directing union officials to stop collecting the compulsory fees. Our court victories establishing employees’ rights against the compulsory collection of fees set legal precedents available to millions of employees. But the legal precedents themselves do not provide relief to employees who are not included in the precedent-setting legal action.
The Battle is Not Over
The battle is not over. Many more legal actions lie ahead of us before we ultimately succeed. But as you can see, we are making good progress.
The Foundation is assisting thousands of employees in more than 400 legal actions nationwide in courts and administrative agencies, including the National Labor Relations Board. These cases are designed to effectively enforce our Supreme Court victories and to develop additional legal strategies which advance the cause.
To carry out our wide-range program, we have assembled a full-time staff of 11 dedicated attorneys who manage and carry out the legal program. This select group makes up the nation’s top specialists in this field of labor and constitutional law, working along with hundreds of local attorneys, throughout the country.