Deconstructing Communications Workers v. Beck… whatever money the union bosses want, they get.

On December 14, 2012, a National Labor Relations Board majority (Chairman Pearce, Members Griffin and Block) held that employees who had resigned their union membership and objected to forced union dues for politics and other activities not directly related to collective bargaining and contract administration were not entitled to an independent auditor’s verification letter verifying that the union’s claimed expenses were incurred as the union claimed. The Board majority reasoned that "absent an allegation that the union…failed to comply with [the Board’s] audit requirement, we need not address whether, in other circumstances, a union might be required to produce an audit verification letter." Nurses & Allied Professionals (Kent Hospital), 359 NLRB No. 42 (December 14, 2012). Dissenting Member Hayes noted that including the independent auditor’s letter certifying that the union’s expenditures were audited and correctly restated in the union’s list of expenses would serve to assure Beck objectors at no additional burden to the union. So much for a simple act of transparency.

Now for the really bad news. In the same decision, Kent Hospital, the Board majority held that union lobbying expenses are chargeable to objecting nonmembers, including lobbying expenses on behalf of bargaining units other than that of the forced dues paying Beck objectors. To justify their radical money grab, the Board majority contorted the Supreme Court’s decision in Communications Workers v. Beck, 487 U.S. 735 (1988), protecting a nonmember’s right not to pay forced dues for union activities unrelated to collective bargaining, contract administration, and grievance adjustment. The Board redefined the forced dues Beck standard to make chargeable union lobbying expenses "germane" to those statutory representational functions. So now, according to the Board majority, spending forced dues on lobbying to influence legislators to pass legislation that relates in some manner to labor-management issues is acceptable. The Board majority simply ignored Beck’s holding that a union cannot force objectors to pay for expenses unrelated to dealing with their employer on labor-management issues – and the holding of the U.S. Court of Appeals for the Fourth Circuit in the decision affirmed by the Supreme Court in Beck that lobbying is not chargeable to objecting nonmembers. Now, employees covered by the National Labor Relations Act can be forced to pay for state and federal lobbying expenses regarding the dues objector’s bargaining unit or some other unit if deemed "germane" because it might, possibly, maybe, perhaps, marginally benefit the forced dues payer sometime, somehow, someday.

The Board concludes by inviting briefing on how it should define and apply "germaneness" and what specific types of lobbying it should consider as presumptively germane. Under this approach, don’t be surprised if the Board endorses forced union dues to lobby for Senate confirmation of union friendly Board member candidates to further implement organized labor’s agenda.

Just one more thing… keep checking off dues even though the contract expires.

On December 12, 2012 in WKYC-TV, Inc., 359 NLRB No. 30, the same Board majority overturned 50 years of case precedent to require employers to continue to deduct union dues following the expiration of a collective bargaining agreement containing a provision in which the employer agrees to deduct union dues from the wages of employees who have signed dues deduction ("check-off") authorizations.

The majority overturned Bethlehem Steel, 136 NLRB 1500 (1962), reasoning that dues check-off does not involve the contractual surrender of any statutory or non-statutory right but is a voluntary agreement of administrative convenience to a union and employees.

In dissent, Member Hayes noted that a compulsory unionism clause mandating union membership and dues or agency fees is an inducement for employees to authorize check-off. Yet by the same reasoning, once the contract expires and the forced unionism clause is no longer in effect, Hayes recognizes that employees surely would want check-off to end. Hayes concludes by noting that "[i]t hardly advances collective bargaining to require that some portions of negotiated agreements – i.e., those favorable to the union – survive contract expiration, while others – those favorable to the employer – do not. " But, of course, the whole point of the majority’s ruling in this case is the same as its implicit goal in Kent Hospital – maximization of union income and, consequently, power.

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