[House Report 106-968]
[From the U.S. Government Publishing Office]
106th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 106-968
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WORKER PAYCHECK FAIRNESS ACT OF 1999
_______
October 11, 2000.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Goodling, from the Committee on Education and the Workforce,
submitted the following
R E P O R T
together with
MINORITY AND DISSENTING VIEWS
[To accompany H.R. 2434]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and the Workforce, to whom was
referred the bill (H.R. 2434) to require labor organizations to
secure prior, voluntary, written authorization as a condition
of using any portion of dues or fees for activities not
necessary to performing duties relating to the representation
of employees in dealing with the employer on labor-management
issues, and for other purposes, having considered the same,
report favorably thereon without amendment and recommend that
the bill do pass.
Purpose
The purpose of H.R. 2434, the Worker Paycheck Fairness Act,
is to ensure that all workers have sufficient information about
their rights regarding the payment of dues or fees to labor
organizations and the uses of their dues and fees by labor
organizations, and to ensure that the right of all workers to
make individual and informed choices about the political,
social or charitable causes they support is protected to the
greatest extent possible.
The legislation creates a new, federal right implementing
the spirit of the Supreme Court's 1988 Beck decision. In Beck,
the high court held that workers could not be required to pay
for activities beyond those related to legitimate union
functions. H.R. 2434 applies only in circumstances in which
employees work under a ``union security agreement,'' that is,
when unions require workers to pay dues as a condition of
keeping their jobs.
Committee Action
H.R. 2434, the Worker Paycheck Fairness Act, was introduced
by Representative Bill Goodling (R-PA) on July 1, 1999. H.R.
2434 was marked up in Full Committee on November 3, 1999, and
ordered favorably reported by roll call vote (yeas 25, nays 22,
not voting 2). H.R. 2434 currently has 24 cosponsors.
The Worker Paycheck Fairness Act is similar to H.R. 1625,
introduced during the 105th Congress by Representative Harris
W. Fawell on May 15, 1997. H.R. 1625 had more than one hundred
cosponsors, including the entire Republican House leadership.
By unanimous consent, the Subcommittee on Employer-Employee
Relations was discharged from further consideration of H.R.
1625 on October 8, 1997. On that same date, the Committee on
Education and the Workforce approved H.R. 1625, as amended, by
a voice vote, and, also by a voice vote, ordered the bill
favorably reported.
The Committee on Education and the Workforce has held six
hearings during the past three Congresses on the issue of
compulsory union dues. The hearings established that rank-and-
file union members need more control over the portion of their
dues money that is spent on activities having nothing to do
with the functions of the union. Worker after worker testified
about the incredible burdens they have faced trying to exercise
their rights under current law and recover money that is
theirs.
Throughout the Committee's hearings, union members
testified about the intimidation, stonewalling and deception
they have experienced in their attempts to exercise their
rights, under Communications Workers of America v. Beck,\1\ to
object to the use of their union dues or fees for purposes that
were not necessary to collective bargaining. The Committee also
heard from individuals from several organizations that had
represented workers who had attempted to object to the non-
collective bargaining use of their union dues or fees. These
witnesses highlighted both the significant challenges under the
current law and the depth of the frustration workers feel with
regard to mandatory assessment of union dues and fees. Workers,
as well as individuals experienced in the legal aspects of
asserting Beck rights, testified in support of the Worker
Paycheck Fairness Act, and indicated it would inject more
fairness into the mandatory dues collection process.
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\1\ 487 U.S. 735 (1988).
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The Subcommittee on Employer-Employee Relations held a
hearing on the abuse of worker rights and the Worker Paycheck
Fairness Act on January 21, 1998. Testimony was heard from
Robert P. Hunter, Director of Labor Policy for the Mackinac
Center for Public Policy, Midland, Michigan; John Masiello,
Member, International Association of Machinists and Aerospace
Workers, Mooresville, North Carolina; Frank Ury, Co-Author,
California Campaign Reform Initiative, Mission Viejo,
California; John Hiatt, General Counsel, AFL-CIO, Washington,
DC; Morgan O. Reynolds, Professor, Department of Economics,
Texas A&M University, College Station, Texas; John C. McCrae,
Member, Carpenters for Democracy in Unions, Ridley Park,
Pennsylvania; Cheri W. James, President, Virginia Education
Association, Richmond, Virginia; and Mark Wilson, Policy
Analyst, Heritage Foundation, Washington, DC.
On December 11, 1997, the Subcommittee on Employer-Employee
Relations held a field hearing in San Diego, California. During
the hearing, which addressed mandatory union dues and the abuse
of worker rights, testimony was heard from James Righeimer, co-
author, California Campaign Reform Initiative, Tustin,
California; John Moses, Employee, National Steel and
Shipbuilding Company, San Diego, California; Karan Koog,
Member, International Association of Machinists and Aerospace
Workers, Woodworkers Local Lodge W98, AFL-CIO, McKinleyville,
California; Jane McGill, President, Sweetwater Education
Association, San Diego, California; Nadia Q. Davies, Former
Teacher, San Diego, California; Jackie Giles, Member, Service
Employees Local 2028, San Diego, California; Brenda Reneau,
Commissioner of Labor, State of Oklahoma, Oklahoma City,
Oklahoma; and Bob Williams, President, Evergreen Freedom
Foundation, Olympia, Washington.
The Committee on Education and the Workforce held a hearing
on H.R. 1625 on July 9, 1997. Testimony was heard from Kevin
Spence, Phoenix, Arizona; Charles E. Barth, Cornelius, North
Carolina; Daniel A. Klosowski, Milwaukee, Wisconsin; Steven J.
Nemirow, Attorney, Portland, Oregon; Roger Pilon, Director,
Center for Constitutional Studies, CATO Institute, Washington,
DC; Marshall J. Breger, Visiting Professor of Law, Columbus
School of Law, the Catholic University of America, Washington,
DC; Mitchell Kraus, General Counsel, Transportation
Communications Union, Rockville, Maryland; and James B.
Coppess, Associate General Counsel, Communications Workers of
America.
The Subcommittee on Employer-Employee Relations held a
hearing on mandatory union dues on March 18, 1997. Testimony
was heard from the Honorable Esteban Edward Torres, Member of
Congress; Jane Gansmann, West Chicago, Illinois; Kerry W. Gipe,
Matthews, North Carolina; E. Grady Thurston, Suisun City,
California; Robert A. St. George, St. Paul, Minnesota; Bob
Williams, President, Evergreen Freedom Foundation, Olympia,
Washington; Patrick J. Manshardt, Attorney, Individual Rights
Foundation, Los Angeles, California; Morgan O. Reynolds,
Professor, Department of Economics, Texas A&M University,
College Station, Texas; Allison Beck, General Counsel,
International Association of Machinists and Aerospace Workers,
AFL-CIO; and James B. Coppess, Associate General Counsel,
Communications Workers of America.
Hearings on mandatory union dues were also held by the
Subcommittee on Employer-Employee Relations during the 104th
Congress. On April 18, 1996, the subcommittee heard testimony
from Gary Bloom, Southhaven, Minnesota; James Cecil, Clarkston,
Michigan; Len Cipressi, Los Angeles, California; Gary Dunham,
Buffalo, New York; Charles R. Serio, Linthicum, Maryland; John
Wilson, Neosho, Missouri; Marshall J. Breger, Visiting
Professor of Law, Columbus School of Law, the Catholic
University of America, Washington, DC; W. James Young, Staff
Attorney, National Right to Work Legal Defense Foundation,
Springfield, Virginia; Victoria Bor, Attorney, Sherman, Dunn,
Cohen Leifer & Yellig, Washington DC (testifying on behalf of
the International Brotherhood of Electrical Workers); and Mark
Schneider, Associate General Counsel, International Association
of Machinists and Aerospace Workers, AFL-CIO, Washington, DC.
On June 19, 1996, the subcommittee held a hearing on the Worker
Right to Know Act, legislation similar to H.R. 2434, and to
H.R. 1625 that was introduced in the 104th Congress. At this
hearing, the subcommittee heard from Mary S. Burkholder,
Chambersburg, Pennsylvania; William H. Hitchings, Chicago,
Illinois; Charles W. Baird, Professor of Economics and
Director, Smith Center for Private Enterprise Studies,
California State University, Hayward, California; Raymond J.
LaJeunesse, Staff Attorney, National Right to Work Legal
Defense Foundation, Springfield, Virginia; Michael A. Taylor,
Attorney, Powell, Goldstein, Frazer & Murphy, Washington, DC;
Marshall J. Breger, Visiting Professor of Law, Columbus School
of Law, the Catholic University of America, Washington, DC;
James B. Coppess, Associate General Counsel, Communications
Workers of America; and Helen Gibson, Agency Fee Administrator,
Communications Workers of America.
Committee Views
Introduction and Summary
Despite the U.S. Supreme Court establishing more than a
decade ago that workers who are forced to pay union dues as a
condition of employment may not be required to pay dues beyond
those necessary for collective bargaining, Beck\2\ rights have
remained illusory. Employees must first be aware that they have
a right to object to non-collective bargaining dues. The fact
of the matter is that the actual text of the National Labor
Relations Act, as currently written, still appears to permit
unions and employers to agree to make union membership and
payment of full union dues a condition of employment. The law
also puts the burden on the employee to object to non-
collective bargaining dues and, if no objection is made, the
employee may be liable for full dues. Further, if an employee
wants to object to the payment of non-collective bargaining
dues, the union may require the employee to resign from the
union and, in the process, the employee loses critical
workplace rights such as the right to ratify a contract or vote
to go on strike.
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\2\ Id.
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If an employee gets this far and decides to affirmatively
object, the employee must often withstand threats and
intimidation from co-workers and union officials, only to have
to renew the objection each year. In sum, the right of an
employee to object to the payment of any dues beyond those
necessary for collective bargaining has remained more of a
legal right than a practical one. The hurdles an employee must
overcome are many, requiring extreme persistence, knowledge of
the law, and a willingness to buck the system and give up
participation in decisions affecting his or her work
environment.
The Worker Paycheck Fairness Act addresses each of these
shortcomings of current law. The legislation creates a new
requirement in federal law directing any labor organization
accepting payment of any dues or fees from an employee as a
condition of employment pursuant to an agreement authorized by
federal law to simply secure from each employee prior,
voluntary, written authorization for any portion of such dues
or fees which will be used for non-collective bargaining
activities. The Worker Paycheck Fairness Act includes effective
remedial provisions modeled on the Family and Medical Leave Act
providing that any labor organization which failed to secure
the required authorization would be liable to the affected
employee for damages equal to two times the amount of the dues
or fees accepted in violation of the Act together with
interest. The employee could also recover attorneys' fees and
costs.
Unionized employers would be required to post a notice
informing employees of their rights under the legislation. The
Worker Paycheck Fairness Act also requires more detailed
financial reporting by labor organizations, gives workers
paying union dues or fees the same access to financial
information as union members, and allows any interested party
to make a written request for financial reports filed with the
Department of Labor. Consistent with other workplace laws, the
legislation would also protect workers against coercion or
retaliation in the exercise of their rights under this Act. The
Worker Paycheck Fairness Act injects needed fairness into the
mandatory dues collection process and builds upon the reasoning
of the Supreme Court in Beck to finally transform the promise
of that decision into a reality.
Current Law Fails to Protect Workers' Rights
In 1988, the Supreme Court established in Communications
Workers of America v. Beck\3\ that workers cannot be forced
under a union security clause to pay dues or fees to a union
beyond those ``necessary to performing the duties of an
exclusive representative of the employees in dealing with the
employer on labor-management issues.'' Unfortunately, Beck
rights as currently constituted have proven elusive to the
average working American. After receiving testimony from
numerous workers from all across this nation and from a host of
organizations that advocate on behalf of employees related to
their union dues obligations, the Committee has concluded that
the rights enunciated by the Supreme Court in Beck do not offer
employees a meaningful right to object to union dues or fees
not necessary to collective bargaining. The problems with Beck
rights as currently available are manifold.
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\3\ 487 U.S. 735, at 762 (1988).
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Lack of notice
The problems begin with the notice, or lack thereof, that
employees have of their right under Beck to object to the use
of compulsory dues for purposes not necessary to collective
bargaining. As Marshall Breger, former Solicitor for the
Department of Labor during the Bush administration and a law
professor at Catholic University's Columbus School of Law,
testified: ``There has been considerable controversy as regards
how non-union agency fee payers are expected to learn of their
Beck rights. Unions have no specific interest in appraising
workers of their `refund rights' because the use of the refund
option reduces their discretionary funds. Indeed even some
employers believe that it is in their interest to reduce the
transaction costs under union security agreements. Perhaps it
is the case that Beck rights have passed into the common
consciousness of industrial relations--I have seen no evidence
to sustain that proposition, however.'' \4\
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\4\ Hearing on Mandatory Assessment of Union Dues, Before the
Subcommittee on Employer-Employee Relations, 104th Cong., 2nd Sess., at
12 (April 18, 1996) (Serial No. 104-66).
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Oklahoma's Commissioner of Labor, Brenda Reneau, who
introduced Beck rights language into that state's minimum wage
poster, testified that ``the rank and file are kept in the
dark, with little to no explanation of their rights.'' \5\
Reneau cited a poll of 1,000 union members, which found that
only 1 in 4 with at least 20 years of membership actually knew
of their rights, or the right to request a refund of dues spent
on political activities, and that of those with fewer than 5
years of membership, only 1 in 10 had knowledge of the rights
granted under the Beck decision.\6\
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\5\ Field Hearing on Mandatory Union Dues and the Abuse of Worker
Rights, Before the Subcommittee on Employer-Employee Relations, 105th
Cong., 2nd Sess., at 36 (December 11, 1997) (Serial No. 105-24).
\6\ Id.
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The experiences of the workers who testified before the
Committee reinforce the conclusions that Mr. Breger and Ms.
Reneau articulated about the lack of notice. Bill Hitchings, a
longtime member of the Carpenters' Union, stated: ``[T]he union
makes no attempt whatsoever to make the membership aware that
they have options under the Beck ruling * * * I've been
deprived of information. I don't know whether it's on purpose
or just an oversight, but when I made objection to [political
spending] with my union, they certainly never mentioned Beck to
me.'' \7\ Similarly, Robert St. George, an airline industry
worker from St. Paul, Minnesota, told the Committee: ``When
[the union representative] was asked at this meeting if there
wasn't some way we could just pay for representation, as I
remember it, [he] made the incredible claim that we could not
because Minnesota was not a Right to Work State and that can
only be done in a Right to Work State. [He] would not even tell
us about our Beck rights when asked.'' \8\
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\7\ Hearing on H.R. 3580, the Worker Right to Know Act, Before the
Subcommittee on Employer-Employee Relations, 104th Cong., 2nd Sess., at
197, 363 (June 19, 1996) (Serial No. 104-66).
\8\ Hearing on Mandatory Union Dues, Before the Subcommittee on
Employer-Employee Relations, 105th Cong., 1st Sess., at 24 (March 18,
1997) (Serial No. 105-9).
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Daniel Klosowski, a broadcast engineer from Milwaukee,
Wisconsin, testified: ``No one explained what my obligations
for union dues were, nor was I given a copy of the contract to
read. That should have been the time when my obligations were
discussed regarding union dues, and whether I had the choice of
even joining the union. This is still the current practice used
by the stewards today; they do not tell new hires what their
rights are * * *'' \9\ John Moses, a foreman at a California
shipbuilding company, testified before the Committee: ``Over
the years since I've gotten out of the union, through talking
to people, I've learned of rights I never knew I had. I never
knew about the Beck decision and the rights it gave me. When I
was a member of the union I never knew about any of these
options.'' \10\ A poll conducted during the 105th Congress at
the request of Americans for a Balanced Budget backs up the
experiences of these workers. The survey found that only 19% of
union members know that they could object to the use of union
dues for non-collective bargaining purposes.
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\9\ Hearing on H.R. 1625, the Worker Paycheck Fairness Act, Before
the Committee on Education and the Workforce, 105th Cong., 1st Sess.,
at 77 (July 9, 1997) (Serial No. 105-51).
\10\ Field Hearing on Mandatory Union Dues and the Abuse of Worker
Rights, Before the Subcommittee on Employer-Employee Relations, 105th
Cong., 2nd Sess., at 120 (December 11, 1997) (Serial No. 105-24).
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Neither the National Labor Relations Board (NLRB) nor the
Department of Labor has taken any substantial steps to address
this widespread lack of notice. In its first comprehensive
ruling interpreting Beck, the NLRB concluded that it was
sufficient for the union to print a notice of Beck rights only
once a year in the inside of its monthly magazine.\11\
Although, why non-union fee payers are expected to pick up and
read the union magazine is less than clear. Further, both the
Board and the current administration have steadfastly failed to
require that Beck notices be posted in the workplace. One of
President Clinton's initial acts upon taking office was to
rescind an executive order issued by President Bush requiring
federal contractors to post Beck notices.\12\
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\11\ California Saw & Knife Works, 320 NLRB 224 (Dec. 20, 1995).
\12\ Executive Order 12836 (February 1, 1993) rescinding Executive
Order 12800 (April 13, 1992).
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Union resignation required
Employees who are fortunate enough to clear the initial
hurdle of not knowing their rights under Beck and want to
object to the use of their union dues for political or social
causes are often required to resign their membership in the
union.\13\ This is not an easy thing for many employees to do
for a number of reasons. First and foremost, as stated in
testimony the Committee heard from James Young, an attorney
with the National Right to Work Legal Foundation, unions often
either wittingly or unwittingly (Mr. Young argues the former)
mislead their employees on the effect resignation from the
union will have on their employment, implying that resignation
will lead to discharge.\14\ The text of the collective
bargaining agreement itself exacerbates this deception, as
union security clauses often require full membership in the
union as a condition of employment even though the courts have
made it clear that this cannot be demanded of employees.\15\
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\13\ The Beck decision did not address whether or not an employee
can be required to resign from the union in order to exercise Beck
rights. In a later decision, the Fourth Circuit Court of Appeals did
find that employees do not have a right to remain a member of a union
yet only pay for the costs of union activities necessary to collective
bargaining. Kidwell v. Transportation Communications International
Union, 946 F.2d 283 (4th Cir. 1991). See also, United Steelworkers, 329
NLRB No. 18, at fn. 3 (Sept. 17, 1999)(noting NLRB general counsel's
position, pursuant to General Counsel's Guidelines, that in order to
qualify for Beck rights, employee must be non-member of union).
\14\ Hearing on Mandatory Assessment of Union Dues, Before the
Subcommittee on Employer-Employee Relations, 104th Cong., 2nd Sess., at
112 (April 18, 1996) (Serial No. 104-66).
\15\ National Labor Relations Board v. General Motors Corp., 373
U.S. 734 (1963). The Supreme Court, however, has contributed to
workers' confusion by holding that union contracts can require
compulsory membership without spelling out that workers do not have to
become full union members. Marquez v. Screen Actors Guild, Inc., 525
U.S. 33 (1998) (holding as reasonable union contract's security clause
tracking language of NLRA Section 8(a)(3)).
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The experiences of several of the workers who testified
before the Committee buttress the observations made by Mr.
Young. Gary Bloom, a medical records clerk from Southhaven,
Minnesota, related his experience as follows: ``[The union
official] mentioned that as part of the union contract, I must
become a member of Local 12, 31 days after being hired and if I
chose not to become a member, she * * * would have no
alternative but to request that Group Health terminate my
employment there.'' \16\ Similarly, Kerry Gipe, an airline
mechanic from Matthews, North Carolina, testified, ``I was told
that joining the union was a mandatory part of working for the
company.'' \17\ Nadia Davies, a retired schoolteacher from San
Diego, testified that when she asked her union to allow her to
pay only those dues related to collective bargaining, she ``* *
* was told in no uncertain terms that [she] could not do that
and that [she] was locked in for the duration of the
contract.'' \18\
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\16\ Hearing on Mandatory Assessment of Union Dues, Before the
Subcommittee on Employer-Employee Relations, 104th Cong., 2nd Sess., at
26 (April 18, 1996) (Serial No. 104-66).
\17\ Hearing on Mandatory Union Dues, Before the Subcommittee on
Employer-Employee Relations, 105th Cong., 1st Sess., at 17 (March 18,
1997) (Serial No. 105-9).
\18\ Field Hearing on Mandatory Union Dues and the Abuse of Worker
Rights, Before the Subcommittee on Employer-Employee Relations, 105th
Cong., 2nd Sess., at 30 (December 11, 1997) (Serial No. 105-24).
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Workers experience intimidation and coercion
Even for employees who find out the truth, many who object
to the union's ``extracurricular'' activities may believe that
union representation brings them benefits in the workplace and
thus may be reluctant to resign. Some employees may also fear
the reaction that union resignation may bring from fellow
employees. Robert Hunter, who heads the Mackinac Center for
Public Policy, in Midland, Michigan, testified before the
Committee: ``We see peer pressure and bullying tactics from
within union ranks, often discouraging members from exercising
their Beck rights * * * [T]hey are pressured to avoid rocking
the boat.'' \19\ Several workers appearing before the Committee
testified regarding the coercion and intimidation they
experienced once they began to question the orthodoxy of full
union membership and dues payment.
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\19\ Hearing on Abuse of Worker Rights and H.R. 1625, the Worker
Paycheck Fairness Act, Before the Subcommittee on Employer-Employee
Relations, 105th Cong., 2nd Sess., at 7 (January 21, 1998) (Serial No.
105-71).
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John Masiello, a mechanic at U.S. Airways and IAM member,
testified that once he began asking about his Beck rights,
``the local lodge president * * * immediately started a
campaign to discredit me * * * He did this with slanderous
lies, and character assassination. Letters were hung all over
the workplace claiming [I] objected to paying any dues * * *
Months had gone by and the harassment had not let up one bit,
and to make matters worse, I was still paying what they had
considered full dues. Not one penny of the overpayment was
refunded to me * * * I was forced to take the local lodge
president to small claims court.'' \20\
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\20\ Hearing on Abuse of Worker Rights and H.R. 1625, the Worker
Paycheck Fairness Act, Before the Subcommittee on Employer-Employee
Relations, 105th Cong., 2nd Sess., at 101-102, (January 21, 1998)
(Serial No. 105-71).
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Kerry Gipe told the Committee: ``* * * the union began an
almost immediate smear campaign against us, led by our local
president * * * portraying us as scabs, and freeloaders * * *
We had our names posted immediately on both union property and
company property accusing us of being scabs. We were thrown out
of our local union hall, and threatened with physical violence
* * * We were accosted at work, we were accosted on the street.
We were harassed, intimidated, and threatened. We were told
that our names were being circulated among all union officials
in order to prevent us from ever being hired into any other
union shop at any other location. The union membership was told
that we were refusing to pay any dues whatsoever, which created
a very hostile environment among our fellow workers.'' \21\
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\21\ Hearing on Mandatory Union Dues, Before the Subcommittee on
Employer-Employee Relations, 105th Cong., 1st Sess., at 15 (March 18,
1997) (Serial No. 105-9).
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James Cecil of Clarkston, Michigan, testified that ``the
union agent wanted to know why I would not sign the check-off
and join * * * [H]e became angry and asked me who the hell I
thought I was? Did I think I was some kind of intellectual? Did
I think I was better than the other workers out there? I told
him no, but I know what my rights are and I intend to defend
them * * * He promised me in no uncertain terms that he would
bring the full force of his and the other unions down on me if
I dared to do that * * * I was greatly concerned about
retaining my job and for my physical well-being.'' \22\
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\22\ Hearing on Mandatory Assessment of Union Dues, Before the
Subcommittee on Employer-Employee Relations, 104th Cong., 2nd Sess., at
29 (April 18, 1996) (Serial No. 104-66).
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Loss of workplace rights
Even if one withstands the intimidation and coercion, once
an employee resigns from the union he or she loses the right to
have a voice in the myriad decisions made between the exclusive
bargaining representative and the employer about the terms and
conditions affecting his or her employment. In most workplaces,
employees who are part of a bargaining unit that is represented
by a union, but who are not union members, have no right to
participate in the internal affairs of the union (e.g. cannot
vote in union elections), have no right to vote in decisions to
strike an employer, and have no right to vote to ratify a
contract offer of an employer. Under a union security
agreement, a nonmember can be forced--as a condition of
employment--to pay for the costs of union representation but
can be denied participation in all decisionmaking with regard
to what that representation entails.\23\
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\23\ See Testimony of W. James Young, Hearing on Mandatory
Assessment of Union Dues, Before the Subcommittee on Employer-Employee
Relations, 104th Cong., 2nd Sess., at 110-111 (April 18, 1996)(Serial
No. 104-66).
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Several workers appearing before the Committee expressed
frustration at the Hobson's choice they were facing. Leonard
Cipressi from Los Angeles, California told the Committee:
``When you exercise your Beck rights you don't get to vote on
contracts that affect you, your family, your peers. Not only
that, you don't get to exercise free speech because you're not
allowed to go to union meetings.'' \24\ Gary Dunham described
the situation under current law as forcing him to ``choose
between First Amendment rights and workplace rights'' and to
forego his rights to participate in the union and to vote on
his contract.\25\
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\24\Hearing on Mandatory Assessment of Union Dues, Before the
Subcommittee on Employer-Employee Relations, 104th Cong., 2nd Sess., at
92 (April 18, 1996)(Serial No. 104-66).
\25\ Hearing on Mandatory Assessment of Union Dues, Before the
Subcommittee on Employer-Employee Relations, 104th Cong., 2nd Sess., at
54 (April 18, 1996)(Serial No. 104-66).
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The words of the unions themselves speak volumes as to the
detriment experienced by workers forced to resign from the
union in order to assert Beck rights. The International
Association of Machinists and Aerospace Workers (IAM) posted a
notice in Kerry Gipe's workplace making very clear that ``these
employees have lost their say in all union activities except
the right to be represented in accordance with their grievance
procedures and strike benefits if they choose not to become a
scab and cross our picket line.'' \26\
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\26\ Hearing on Mandatory Union Dues, Before the Subcommittee on
Employer-Employee Relations, 105th Cong., 1st Sess., at 22 (March 18,
1997)(Serial No. 105-9).
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Procedural hurdles
If the employee is willing to accept these very real
limitations on his or her role in the workplace, the
meaningfulness of the employee's right to object to dues being
used for non-collective bargaining purposes is further diluted
by the practical obstacles to the exercise of that right. The
workers who testified before the Committee highlighted some of
the procedural hurdles, pointing out, for example, limited
window periods for making objections, annual renewal
requirements for objectors, very specific requirements
regarding mailing objections, and the requirement that
objections must be made to multiple parties. Kerry Gipe
indicated that ``the current system of resigning from the union
and then re-applying annually * * * is a further heavy burden
that the workers of this country should not be required to
bear. This practice is clearly intended to make your objection
to supporting these causes as difficult as possible.'' \27\
Charles Serio of Linthicum, Maryland told the Committee: ``No
matter how scrupulously I followed the policy prescribed by
CWA, my demands for an agency fee reduction were ignored * * *
I subsequently received my first agency fee reduction * * *
more than two years after my initial effort.'' \28\
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\27\ Hearing on Mandatory Union Dues, Before the Subcommittee on
Employer-Employee Relations, 105th Cong., 1st Sess., at 18 (March 18,
1997)(Serial No. 105-9).
\28\ Hearing on Mandatory Assessment of Union Dues, Before the
Subcommittee on Employer-Employee Relations, 104th Cong., 2nd Sess., at
36 (April 18, 1996) (Serial No. 104-66).
---------------------------------------------------------------------------
Karan Koog, a former IAM member from McKinleyville,
California, told the Committee that when she asked a ``normally
helpful'' shop steward how she would go about exercising her
Beck rights, ``* * * [the union officer] admitted he had heard
something like that once, however, he really didn't know what
is was about or how one would go about finding out how to
prohibit dues from being used for political purposes. The
barriers to information that I faced was enough to stop me from
pursuing the matter further.'' \29\
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\29\ Field Hearing on Mandatory Union Dues and the Abuse of Worker
Rights, Before the Subcommittee on Employer-Employee Relations, 105th
Cong., 2nd Sess., at 25 (December 11, 1997)(Serial No. 105-24).
---------------------------------------------------------------------------
The Committee's hearings made clear that there are no any
easy answers for employees, whether they are union members or
not, who want to take issue with the activities of the union
that go beyond what may be a yeoman's effort by that union in
representing employees in the workplace. The Committee views
these issues as ones of basic fairness. So long as unions and
employers have the unique power under federal law to divert a
portion of a worker's salary for collective bargaining expenses
under the pain of the loss of the worker's job, the Committee
has an obligation to ensure that workers are treated with
respect and fairness. Workers have a right to know why money is
taken out of their paycheck, how money legitimately taken is
used, and a realistic and available right to stop money from
being taken out of their paychecks that is not used for
legitimate collective bargaining purposes. This is exactly what
the Worker Paycheck Fairness Act is designed to provide.
The Worker Paycheck Fairness Act
The Worker Paycheck Fairness Act merely says to unions who
want to require workers to pay union dues as a condition of
keeping their jobs, if you want to spend dues for reasons not
germane to collective bargaining, (1) Get written consent of
the workers first; and (2) provide better information
concerning how the dues were spent. The legislation is designed
to answer the lament of workers like Gary Dunham who told the
Committee, ``This four-year ordeal has opened my eyes to the
abuse that is possible under current labor law. If I don't pay
dues or fees to my union, I will be fired. In practical terms,
my money is being used for causes and ideas I oppose and my
four-year effort shows me there is nothing I can do to change
this. So I am turning to you, hoping that you will help me and
the thousands of other workers who find themselves in a similar
situation.'' \30\
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\30\ Hearing on Mandatory Assessment of Union Dues, Before the
Subcommittee on Employer-Employee Relations, 104th Cong., 2nd Sess., at
54-55 (April 18, 1996) (Serial No. 104-66).
---------------------------------------------------------------------------
The Worker Paycheck Fairness Act is about common sense and
basic worker rights. It is not about trying to silence unions
or interfere with the role they can and should play in the
political process. The legislation allows unions to spend their
money exactly as they currently do. The only difference is that
individual workers, who provide the lion's share of their
union's financial resources, must first give their written
consent before being obligated to pay for those expenses that
have nothing to do with collective bargaining.
Up-front consent
The most dramatic improvement contained in the Worker
Paycheck Fairness Act is its requirement that workers be
granted an opt-in, up-front consent procedure. This stands in
contrast to the process under current law, which requires
workers to affirmatively object, that is, to opt-out of paying
non-collective bargaining dues, and to renew their objection
each year. Under the bill, labor organizations that accept
payment of any dues or fees from employees as a condition of
employment pursuant to an agreement authorized by federal law
must secure from each employee a prior, voluntary written
authorization for any portion of dues or fees used for non-
collective bargaining activities. Under current law, an
agreement requiring the payment of dues or fees to a labor
organization as a condition of employment--a so-called union
security clause--is permissible both under the National Labor
Relations Act \31\ and the Railway Labor Act.\32\
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\31\ 29 U.S.C. Section 158(a)(3).
\32\ 45 U.S.C. Section 152, Eleventh.
---------------------------------------------------------------------------
H.R. 2434 sets forth several specific requirements for the
terms of the written authorization--each designed to ensure
that workers are well-apprised of their rights and obligations
regarding the payment of dues or fees to a labor organization.
The authorization must clearly state that the employee is not
required to provide the authorization--and thus is not required
to pay those dues or fees used for non-collective bargaining
activities. It must also state that if the authorization is
provided--and thus the employee agrees to pay non-collective
bargaining dues or fees--the labor organization may use those
dues or fees for activities that may be political, social or
charitable in nature.
The Worker Paycheck Fairness Act also provides that the
authorization remains effective until revoked and may be
revoked at any time upon giving 30 days written notice.
Much has been made of the fact that H.R. 2434 does not have
any application to corporations or other membership
organizations. The Committee believes that there are sound
policy reasons for drawing a distinction between labor
organizations utilizing a union security clause and other
organizations. First of all, the Worker Paycheck Fairness Act
does not apply to every union. It only applies to those unions
that have voluntarily chosen to enter into a union security
clause with an employer requiring employees to pay union dues
or fees as a condition of employment. Herein lies the critical
difference between unions and corporations or other membership
organizations. Unions, by a grant of power from the federal
government, can force employees to pay dues to the union as a
condition of keeping their jobs; corporations cannot force
individuals to invest in them, nor can other membership
organizations force individuals to join and pay dues.
The Committee believes that it is entirely fair to balance
this special ``taxing'' power given to unions with special
obligations to ensure that employees paying mandatory dues are
well-informed as to their rights and obligations regarding
those payments. Here is how a long-time member of the
Carpenters' Union, Bill Hitchings, drew the distinction between
unions and corporations:
[A]s a stockholder of AT&T, wouldn't I have the
option of divesting myself of that stock without
endangering my ability to feed my family, clothe
myself, house myself, provide medical care for myself?
I mean, we're talking apples and oranges here. I'm
talking about my job. I can take money from an
investment in AT&T and turn it into another stock if I
disagreed terribly with what AT&T is doing with my
money. I have no option of joining another carpenters'
union. There ain't one.'' \33\
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\33\ Hearing on Mandatory Assessment of Union Dues, Before the
Subcommittee on Employer-Employee Relations, 104th Cong., 2nd Sess., at
362 (April 18, 1996) (Serial No. 104-66).
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Collective bargaining dues/non-collective bargaining dues
H.R. 2434 requires that a written authorization be secured
for any dues or fees that will be used for activities which are
``not necessary to performing the duties of the exclusive
representative of the employees in dealing with the employer on
labor-management issues.'' This language is taken directly from
the holding in the Beck decision where the Supreme Court
stated: ``We conclude that Section 8(a)(3) [of the National
Labor Relations Act], like its statutory equivalent, Section 2,
Eleventh of the Railway Labor Act, authorizes the exaction of
only those dues and fees necessary to 'performing the duties of
an exclusive representative of the employees in dealing with
the employer on labor-management issues.' '' \34\
---------------------------------------------------------------------------
\34\ 487 U.S. 735, 762 (1988).
---------------------------------------------------------------------------
The Committee relied on this language from Beck in drafting
H.R. 2434 because the language most accurately reflects the
services that a worker is required to pay for when he or she
must pay dues or fees to a labor organization under a union
security clause. In short, under the terms of the legislation,
a line is drawn--reinforcing the line that already exists under
current law--between collective bargaining dues and non-
collective bargaining dues. A worker subject to a union
security clause may be required to pay only those dues or fees
necessary for collective bargaining. A worker may be asked to
pay additional dues or fees for non-collective bargaining
activities, and such dues or fees may be accepted only if the
union has secured a voluntary written authorization from the
worker.
Under the formulation set forth in H.R. 2434, the types of
activities that a worker could be forced to finance through
dues or fees paid under a union security clause are only those
necessary to support the union's activities in representing the
employees before their employer on labor-management issues.
Thus, preparations for collective bargaining, negotiating with
an employer, representing employees in grievances, and dealing
with contract issues (e.g. determining who would be affected by
a lay-off under a seniority system, resolving a dispute about
the parameters of an employer-provided healthcare plan) would
fall within the duties of the exclusive representative of the
employees and could be financed with mandatory dues or fees
without triggering a consent requirement.
The Committee finds that virtually all political or
lobbying activity would fall outside the scope of collective
bargaining expenses and thus would trigger the up-front consent
requirement. This would include political activity related to
elections for public office, as well as lobbying on matters of
public policy. There is significant Supreme Court precedent
that the former is not chargeable to objecting employees under
the current Beck rubric.\35\ And, with respect to the latter,
both the Supreme Court \36\ and lower courts have begun to
review unions' lobbying expenses for purposes of determining
whether such expenses fall within the category of collective
bargaining activities. The Court of Appeals for the District of
Columbia has held that the Air Line Pilots Association could
not charge objecting employees for lobbying on airline safety
issues. The court concluded: ``That the subject of safety is
taken up in collective bargaining hardly renders the union's
government relations expenditures germane. Under that
reasoning, union lobbying for increased minimum wage laws or
heightened government regulation of pensions would also be
germane. Indeed if the union's argument were played out,
virtually all of its political activities could be connected to
collective bargaining; but the federal courts, including the
Supreme Court, have been particularly chary of treating as
germane union expenditures that touch the political world.''
\37\
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\35\ See e.g. International Association of Machinists v. Street,
367 U.S. 740 (1960); Communications Workers of America v. Beck, 487
U.S. 735 (1988); Lehnert v. Ferris Faculty Association, 500 U.S. 507
(1991).
\36\ The Supreme Court in Lehnert indicated that lobbying generally
was not chargeable to objecting employees; it did intimate that there
might be a narrow exception where lobbying expenses may be chargeable
if the lobbying was related to legislative ratification or fiscal
appropriation for a collective bargaining agreement. While finding that
the labor legislation lobbying expenses at issue were not chargeable,
the Special Master suggested in determinations reviewed by the Fourth
Circuit in the Beck case that some types of lobbying may be chargeable.
776 F.2d 1187 (4th Cir. 1985), en banc, 800 F.2d 1280. Although the
Appeals Court agreed with the Special Master's disallowance of the
lobbying expenses at issue, neither the Fourth Circuit nor the Supreme
Court addressed the issue of legislative lobbying on workplace issues.
Most other decisions speak in general terms about political or
ideological activities being not chargeable. See e.g. International
Association of Machinists v. Street, 367 U.S. 740 (1960); Chicago
Teachers Union v. Hudson, 475 U.S. 292 (1986).
\37\ Miller v. Air Line Pilots Association, 108 F.3d 1415, at 1422
(D.C.Cir. 1997).
---------------------------------------------------------------------------
Consistent with this decision, it is the Committee's view
that, while lobbying on matters of public policy (particularly
with regard to workplace issues) may have some relevance to
collective bargaining, it is clearly not necessary to
performing the duties of the exclusive representative of the
employees in dealing with the employer on labor-management
issues. Thus, a labor organization would not be able to use any
portion of an employee's mandatory dues or fees for lobbying
activities without securing prior consent.
Similarly, the Committee finds that organizing activity is
not necessary to collective bargaining and thus triggers the
requirement for a written authorization. This is consistent
with the reasoning of the Supreme Court in Ellis v. Brotherhood
of Railway Clerks,\38\ which found that organizing is not
chargeable to objecting employees because it has only the most
attenuated benefit to collective bargaining on behalf of the
fee payer. The Committee would note that it views with disfavor
last year's National Labor Relations Board ruling on this point
that runs counter to the Ellis holding. See United Food and
Commercial Workers Locals 951, 7, and 1036 (Meijer, Inc.), 329
NLRB No. 69 (Sept. 30, 1999).\39\
---------------------------------------------------------------------------
\38\ 466 U.S. 435 (1984)
\39\ The Committee does not believe that organizing activities are
a necessary incident of collective bargaining and contract
administration. Rather, the Committee strongly agrees with Board Member
Brame, who noted in his Meijer dissent that the reasoning of Ellis
applies with equal force to union security and the NLRA. Brame further
noted that the Supreme Court has found no basis in the legislative
history for the notion that, in authorizing the union shop, Congress
intended to enhance organizational efforts; that the Court recognized
that organizing efforts are necessarily spent on employees outside the
bargaining unit and therefore afford ``only the most attenuated
benefits to collective bargaining on behalf of the dues payer;'' and
that organizing was not the sort of benefit that Congress had in mind
in authorizing union security agreements to prevent ``free riders''
from enjoying benefits obtained by the union for which they had not
paid. 1999 WL 818607 at 21.
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Other types of activities that fall outside the formulation
of collective bargaining activities and thus trigger the up-
front consent requirement include contributions to charitable
organizations\40\ or social causes and union-sponsored social
or cultural events.\41\
---------------------------------------------------------------------------
\40\ This is consistent with Lehnert v. Ferris Faculty Association,
500 U.S. 507 (1991), where the Supreme Court found that a contribution
from a local union to its parent that was not part of the local's
responsibilities was more in the nature of a charitable contribution
and thus was not chargeable to objecting employees.
\41\ In this regard, the Committee would disagree with the Supreme
Court's conclusion in Ellis v. Brotherhood of Railway Clerks, 466 U.S.
435 (1984), that the expenses for various social activities were
chargeable. Although the Court emphasized the de minimus nature of the
expenses, the Committee believes that social events are not necessary
to performing the duties of the exclusive representative of the
employees in dealing with the employer on labor-management issues.
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Remedies
The Worker Paycheck Fairness Act includes a comprehensive
remedial scheme modeled on that of the Family and Medical Leave
Act. Where a labor organization fails to get the necessary
authorization and spends dues or fees paid under a union
security clause on non-collective bargaining activities, the
legislation allows a worker to sue individually or as part of a
class in any federal or state court. The labor organization
would be liable for damages equal to double the amount of the
dues or fees accepted in violation of the legislation plus
interest calculated at the prevailing rate. In addition, a
court could award attorneys' fees and costs as well as such
equitable relief as may be appropriate.
The remedial provisions of H.R. 2434 are central to its
effectiveness. One of the problems with current law under Beck
is that employees are either unable to pursue their claims in
court because of a lack of resources or because they are
enmeshed in the morass of the National Labor Relations Board.
As Roger Pilon of the CATO Institute testified before the
Committee: ``The enforcement provisions of [the Worker Paycheck
Fairness Act], especially the provisions for fees and costs,
are a welcome improvement. Were the `fees and costs' subsection
to be stripped subsequently from the bill, however, I cannot
imagine how the average worker, absent pro bono assistance,
could vindicate his rights. It is imperative, therefore, that
this provision be kept in the bill--not least because the bill
arises in the first place from the practical problems that
surround the enforcement of Beck rights.'' \42\
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\42\ Hearing on H.R. 1625, the Worker Paycheck Fairness Act, Before
the Committee on Education and the Workforce, 105th Cong., 1st Sess.,
at 158 (July 9, 1997) (Serial No. 105-51).
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If a union's determination as to which expenses were
related to collective bargaining and which are not is
challenged in court, the labor organization would bear the
burden of persuasion in demonstrating that it properly spent
the mandatory dues or fees solely on activities necessary for
performing its duty as the employee's representative before the
employer.\43\ In other words, the union would have to
demonstrate that it secured consent for any dues spent for non-
collective bargaining activities. And, where consent was not
secured, the union would have to show that its expenses were
limited to collective bargaining activities. The D.C. Circuit
has concluded that Beck challenges under the National Labor
Relations Act require an independent audit of the union's
calculations of reductions in agency fee payments, finding that
such an audit was the ``minimal guarantee of trustworthiness.''
\44\ The Committee feels that a similar requirement would be
appropriate under the Worker Paycheck Fairness Act.
---------------------------------------------------------------------------
\43\ This is consistent with the case law that led to the Beck
decision. See Railway Clerks v. Allen, 373 U.S. 113, 122 (1963)
(holding that union, not individual employees, had burden of proving
proportion of political to total union expenditures).
\44\ Ferriso v. National Labor Relations Board, 125 F.3d 865 (D.C.
Cir. 1997). See also Prescott v. County of El Dorado, 177 F.3d 1102,
1107 (9th Cir. 1999) (mandating a ``real'' independent verification of
financial data in question to make sure expenditures are being made the
way union says they are).
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Notice
H.R. 2434 requires all unionized employers to post a notice
in their workplaces informing employees that any labor
organization accepting payment of any dues or fees from an
employee as a condition of employment, pursuant to an agreement
authorized by federal law, must secure from each employee
prior, written authorization if any portion of such dues or
fees will be used for activities not necessary to performing
the duties of the exclusive representative of the employees in
dealing with the employer on labor-management issues. Although
labor organizations would be notifying employees of these
rights as they attempt to secure consent from individual
workers for non-collective bargaining dues, this posting
requirement will serve the purpose of reiterating to employees
what the respective obligations are of workers and unions under
the Worker Paycheck Fairness Act. It is similar to the posting
requirement demanded of federal contractors under an Executive
Order issued by President Bush in 1992 \45\ and later rescinded
by President Clinton.\46\
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\45\ Executive Order 12800 (April 13, 1992).
\46\ Executive Order 12836 (February 1, 1993).
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Disclosure
The Committee's numerous hearings found the reporting and
disclosure of union financial information under current law to
be entirely inadequate. As stated by Marshall J. Breger,
professor of law at Catholic University's Columbus School of
Law, in testimony before the Committee, the information unions
must currently provide to the Department of Labor is ``not
particularly useful in giving union members or anybody a full
understanding of the purposes for which the union is spending
its money.'' \47\ Furthermore, Breger testified, ``Individual
union members have had great difficulty in getting information
and in testing the accuracy of the information given them.''
\48\ H.R. 2434 amends the Labor-Management Reporting and
Disclosure Act (LMRDA) of 1959 \49\ to require more detailed
financial reporting by labor organizations, to provide workers
paying union dues or fees the same access to financial
information as union members, and to give any interested party
the right to make a written request for financial reports filed
under the LMRDA.
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\47\ Hearing on Mandatory Assessment of Union Dues, Before the
Subcommittee on Employer-Employee Relations, 104th Cong., 2nd Sess., at
7 (April 18, 1996) (Serial No. 104-66).
\48\ Hearing on H.R. 3580, the Worker Right to Know Act, Before the
Subcommittee on Employer-Employee Relations, 104th Cong., 2nd Sess., at
348 (June 19, 1996) (Serial No. 104-66).
\49\ 29 U.S.C. 401, et seq.
---------------------------------------------------------------------------
Section 6(a) amends Section 201(b) of the Labor-Management
Reporting and Disclosure Act by adding at the end the following
new sentence: ``Every labor organization shall be required to
attribute and report expenses in such detail as necessary to
allow members to determine whether such expenses were necessary
to performing the duties of the exclusive representative of the
employees in dealing with the employer on labor-management
issues.''
Title II of the LMRDA requires that unions file annual
financial reports, known as LM reports, with the Department of
Labor. The goal for the reporting of expenditures under the
LMRDA should be complete transparency and full disclosure.
Unfortunately, the current LM-2 form \50\ only requires unions
to file yearly their income and expenses according to what
accountants call an ``object classification''--which identifies
expense categories, such as salary, rent, transportation, etc.,
and requires unions to indicate simply the amount of money
spent in those categories. While this provides a flat dollar
amount spent on certain items, it does not allow anyone looking
at the form to determine the purpose for which the money was
being used. Section 6 of H.R. 2434 recognizes that the more a
dues payer knows about the purposes for which a union spends
its money the better able he or she is to decide whether to
elect to allow his or her money to be spent on non-collective
bargaining activities.
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\50\ Unions having $200,000 or more in gross annual receipts must
file with the Department of Labor an ``LM-2'' form. Unions which have
gross annual receipts totaling less than $200,000 for its fiscal year
may elect to file an ``LM-3'' form. If a union has gross annual
receipts totaling less than $10,000 for its fiscal year, it may elect
to file an ``LM-4'' form. 29 CFR Part 403.4 The Department of Labor
receives more than 35,000 forms each year.
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The intent of this provision is to mandate that unions file
such information by ``functional classification'' \51\--setting
forth the purposes for which the money was being used--in a
manner similar to rules proposed by the Bush administration. In
April 1992, the Department of Labor issued a Notice of Proposed
Rulemaking \52\ proposing to revise the various financial
report forms unions must file with the DOL yearly to reflect
various functional categories. These rules, after which the
Committee intends the rules promulgated under Section 6 of H.R.
2434 to be modeled, designated the following eight functions:
contract negotiation and administration; organizing; safety and
health; strike activities; political activities; lobbying;
promotional activities; and other.\53\ In addition, the
Committee would urge that a ninth category be created for
charitable contributions to cover all contributions by the
labor organization to tax-exempt and other charitable/social
organizations. The testimony the Committee received from
workers indicated that they often differed with their union's
choices regarding which charitable/social groups to support as
much as they differed with the union's political choices.
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\51\ A need for functional reporting was recognized as far back as
1978, when the American Institute of Certified Public Accountants
(AICPA) encouraged labor organizations to report on a functional basis.
See 57 FR 14244 at 14245 (April 17, 1992).
\52\ Id. at 14244-14246.
\53\ In issuing its proposed rules, the Department of Labor found
that a rule requiring ``functional'' reporting did not constitute a
``major rule'' in that it would not have an annual effect on the
economy of $100 million or more--thus, no regulatory impact analysis
was prepared or was necessary. 57 FR at 14246.
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The Committee envisions that each expense item contained on
the LM-2 would be further broken down into these nine
functions. It is more helpful for dues payers to know not
simply the amount of money being spent for travel, for example,
but whether that travel was undertaken for organizing, contract
administration, collective bargaining, strike activities,
political activities or lobbying and promotional activities.
This is the sort of detailed information workers require in
order to determine how the money they pay to the union is
actually being spent. For activities that clearly fall outside
the ``core'' union activities of collective bargaining,
contract administration and grievance adjustment--such as for
politics, charitable contributions, social causes, think tanks,
etc.--the more detailed disclosure requirements would serve not
only to educate all dues payers, but would also readily alert
dues payers laboring under a union security agreement that
their prior consent is required for any such expenditures.
Following the Department of Labor's issuance of final rules
in October 1992,\54\ the Clinton administration in December
1993 issued final rules rejecting the Bush administration's
proposed changes pertaining to filing--rescinding the
functional reporting requirement and causing the current LM-
forms to remain basically the same as when the program began in
1960.\55\ As pointed out by Breger, in testimony before the
Committee, the reporting rules promulgated after the LMRDA was
passed nearly 40 years ago were ``cut to the trim of
technological feasibility.'' \56\ In contrast, today's computer
software, Breger testified, allows labor organizations to more
easily provide extensive and useful information to dues
payers.\57\
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\54\ 57 FR 49282-49290 (October 30, 1992).
\55\ 58 FR 67594-67604 (December 21, 1993).
\56\ Hearing on H.R. 3580, the Worker Right to Know Act, Before the
Subcommittee on Employer-Employee Relations, 104th Cong., 2nd Sess., at
225 (June 19, 1996) (Serial No. 104-66).
\57\ Id.
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Section 6(b) amends LMRDA Section 201(c) to ensure that a
labor organization's obligation to make available to all of its
members the information contained in reports it must file with
the Department of Labor pursuant to the LMRDA extends to
``employees required to pay any dues or fees to such
organization'' as well as to ``members.'' All dues payers, not
just union members, are entitled to the LMRDA's guarantee of
access to the information unions use to meet their reporting
obligations. Section 6(b) ensures this entitlement. Section
6(b) also extends to ``employees required to pay any dues or
fees to such organization'' the right granted to ``members''
under the LMRDA to sue any labor organization in any state
court of competent jurisdiction or in the district court of the
United States for the district in which such labor organization
maintains its principal office, to permit such employee for
just cause to examine any books, records, and accounts
necessary to verify any report the labor organization must file
pursuant to the LMRDA.
Section 6(c) amends LMRDA section 205(b) to make clear that
any person may write the Department of Labor to receive a
complete copy of any report or other document the labor
organization must file pursuant to LMRDA section 201, which
includes, among other information required by section
201(a)(1)-(a)(5), the labor organization's constitution and
bylaws and annual financial report. As pointed out to the
Committee in July 9, 1997 testimony from Marshall J. Breger,
the tens of thousands of LM-2 disclosure statements are
currently kept on file in Washington, DC at the Department of
Labor's Office of Labor-Management Standards (OLMS). These
reports, Breger testified, ``are not retrievable by computer
and are available only on the OLMS's receipt of a five-digit
file number corresponding to the file.'' \58\ The public,
Breger noted, must attempt to find files numbers in a reference
book last published in 1990. ``Many of the file numbers are not
updated,'' Breger said, ``which makes finding some files
practically impossible. In addition, there are significant
restrictions on the number of files that can be examined or
photocopied per day. Thus, the Department's existing disclosure
leaves much to be desired.'' \59\ The Committee notes that
efforts have begun at the OLMS to make LM-forms accessible over
the internet. It is the Committee's hope that these forthcoming
technological advances, along with the important amendments
included in this legislation, will greatly enhance the public's
access to this critical information, and further strengthen
union democracy.
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\58\ Hearing on H.R. 1625, the Worker Paycheck Fairness Act, Before
the Committee on Education and the Workforce, 105th Cong., 1st Sess.,
at 193 (July 9, 1997) (Serial No. 105-51).
\59\ Id. at 193-94.
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Anti-retaliation/coercion
The Worker Paycheck Fairness Act makes it unlawful for any
labor organization to coerce, intimidate, threaten, interfere
with, or retaliate against any employee in the exercise of, or
on account of having exercised, any right granted or protected
by the legislation. This prohibition on retaliation would
prevent a union from intimidating or taking any adverse action
against an employee because he or she exercised rights of
consent under the Act. It would also prevent unions from
forcing workers to resign their union membership--and in the
process, to give up critical workplace rights such as the right
to vote on ratifying contracts or approving strikes--in order
to exercise their rights under the bill.
The anti-retaliation provision responds to the earlier-
cited testimony of many workers who spoke of the harassment and
intimidation some unions use to pressure employees to not
exercise their rights regarding the payment of union dues. Such
a provision, which would send a signal that this type of
conduct will no longer be tolerated, is a common feature in
employment rights laws. The language of the anti-retaliation
provision is modeled after that found in section 503 of the
Americans with Disabilities Act and in section 704 of Title VII
of the Civil Rights Act of 1964, and is consistent with the
provisions of section 7 of the National Labor Relations Act and
the protections of section 105 of the Family and Medical Leave
Act. Any union guilty of coercing an employee in deciding
whether to give consent to the use of dues for political,
social, civic or other non-collective bargaining purposes, or
of retaliating against an employee for declining to give
consent, would be liable to the employee in accordance with the
previously outlined remedial provisions.
In addition to the more typical types of harassment and
coercion, the prohibition on retaliation would prevent a union
from expelling a member who refused to give consent to the use
of his dues for non-collective bargaining purposes. Thus, this
provision is intended to overrule not only the decision of the
Fourth Circuit in Kidwell v. Transportation Communications
International Union,\60\ but also any and all NLRB and court
determinations relying upon Kidwell or other precedent in
requiring a union member to resign as a prerequisite to
exercising Beck rights. In Kidwell, the court confronted the
issue of whether the union had to permit union members to
exercise their Beck rights and thus allow them to pay reduced
fees. While the court was sympathetic to Kidwell's argument
that she should not have to resign from the union because in
doing so she would have to give up participation in certain
union activities that have an impact on the conditions of her
employment (for example, ratification of the collective
bargaining agreement), the court held, interpreting Beck and
other cases, that the union could require a union member to
resign from the union if he or she wished to exercise Beck
rights.
---------------------------------------------------------------------------
\60\ 946 F. 2d 283 (4th Cir. 1991).
---------------------------------------------------------------------------
The Committee believes that the reasoning of the district
court in the Kidwell case--the lower court decision was
reversed by the Fourth Circuit--more fairly balances the rights
of dissenting workers and the needs of the union as the
exclusive bargaining representative. In finding that even a
union member was entitled to a reduction in her union dues for
all union expenses unrelated to collective bargaining, the
district court concluded that ``when the union strays from that
charter given by the Railway Labor Act * * * and uses dues to
support candidates, religious beliefs, or any other ideological
cause, it is not an answer to say to one who is opposed to
those views, `leave the union'.'' \61\ Like the Committee, the
district court was persuaded that it was not fair to ask union
members to choose between their workplace rights and their free
speech rights. The Worker Paycheck Fairness Act protects the
basic rights of both members and nonmembers of the union by
giving both an equal ability to exercise their rights under the
legislation without fear of retribution.
---------------------------------------------------------------------------
\61\ 731 F.Supp 192, at 199 (D. Md. 1989).
---------------------------------------------------------------------------
Conclusion
So long as labor organizations and employers have the
unique power under federal law to force workers to pay dues or
fees to a union under the pain of the loss of the worker's job,
the Committee believes that the law must ensure that workers
have the fullest information possible as to their rights and
responsibilities regarding those payments. Workers have a right
to know why money is taken out of their paycheck, how money
legitimately taken is used, and a realistic and available right
to stop money from being taken out of their paychecks that is
not used for legitimate collective bargaining purposes. These
are exactly the rights the Worker Paycheck Fairness Act
provides.
The Act merely says to unions who want to require workers
to pay union dues as a condition of keeping their jobs, if you
want to spend dues for reasons not germane to collective
bargaining, (1) get written consent of the workers first; and
(2) provide better information concerning how the dues were
spent. This is not too much to ask.
Summary
H.R. 2434, the Worker Paycheck Fairness Act, creates a
free-standing statute which would require labor organizations
that accept payment of any dues or fees from an employee as a
condition of employment pursuant to federal law to secure from
each employee prior, voluntary, written authorization for any
portion of such dues or fees which will be used for activities
not necessary to performing the duties of the exclusive
representative of the employees in dealing with the employer on
labor-management issues. The legislation provides that such an
authorization is effective until revoked and may be revoked
upon giving 30 days written notice. H.R. 2434 gives workers
enforcement rights modeled on those granted by the Family and
Medical Leave Act. Under the legislation, if a labor
organization fails to get the employee's authorization but
violates the law by using dues or fees for non-collective
bargaining purposes, the employee may file an individual or
class action lawsuit in federal or state court to recover
double the amount of dues or fees illegally accepted, as well
as attorneys' fees, costs of litigation, and any appropriate
equitable relief.
The bill also requires unionized employers to post a notice
telling employees of their right to be asked permission should
the union want to spend any portion of their dues or fees on
non-collective bargaining activities. Finally, H.R. 2434 amends
the Labor-Management Reporting and Disclosure Act (LMRDA) to
make it easier for workers to give their informed consent by
requiring more detailed financial reporting by labor
organizations, providing workers paying union dues or fees the
same access to financial information as union members, and
giving any interested party the right to make a written request
for financial reports filed under the LMRDA.
Section-by-Section Analysis
Section one
Provides that the short title of the bill is the ``Worker
Paycheck Fairness Act.''
Section two
Establishes the findings of the Committee related to the
rights of workers paying dues or fees to a labor organization,
the uses of dues or fees by labor organizations, and the rights
of individuals regarding the political, social and charitable
causes they support.
Section three
Provides that the purpose of the Act is to ensure that all
workers have sufficient information about their rights
regarding the payment of dues or fees to labor organizations
and the uses of their dues and fees by labor organizations and
to ensure that the right of all workers to make individual and
informed choices about the political, social or charitable
causes they support is protected to the greatest extent
possible.
Section four
Provides that any labor organization accepting any payment
of dues or fees from an employee as a condition of employment
pursuant to federal law must secure from each employee prior,
voluntary, written authorization for any portion of such dues
or fees which will be used for activities not necessary to
performing the duties of the exclusive representative of the
employees in dealing with the employer on labor-management
issues. Also provides that such an authorization shall remain
in effect until revoked and may be revoked upon giving 30 days
written notice. Also provides for a civil action by employees
and specifies the liability of labor organizations that violate
the terms of the Act.
Section five
Requires employers whose employees are represented by a
collective bargaining representative to post a notice informing
employees that any labor organization accepting any payment of
dues or fees from an employee as a condition of employment
pursuant to federal law must secure from each employee prior,
voluntary, written authorization for any portion of such dues
or fees which will be used for activities not necessary to
performing the duties of the exclusive representative of the
employees in dealing with the employer on labor-management
issues.
Section six
Amends the Labor-Management Reporting and Disclosure Act
(LMRDA) to require more detailed financial reporting by labor
organizations, to provide workers paying union dues or fees the
same access to financial information as union members, and to
give any interested party the right to make a written request
for financial reports filed under the LMRDA.
Section seven
Provides that it is unlawful for a labor organization to
coerce, intimidate, threaten, interfere with, or retaliate
against any employee in the exercise of, or on account of
having exercised, any right granted or protected by this Act.
Section eight
Authorizes the Secretary of Labor to prescribe regulations
to implement sections five and six.
Section nine
Provides that the Act shall be effective immediately upon
enactment, except that sections 4 and 5 shall take effect 90
days after enactment and section 6 shall take effect 150 days
after enactment.
Explanation of Amendments
H.R. 2434 was ordered favorably reported without amendment.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1, the Congressional
Accountability Act (CAA), requires a description of the
application of this bill to the legislative branch. H.R. 2434
creates a right on behalf of all workers who pay dues or fees
to a labor organization as a condition of employment pursuant
to an agreement authorized by federal law. Thus, the bill would
apply to legislative branch employees to the extent that they
are subject to union security agreements authorized by federal
law requiring the payment of union dues or fees. However, the
labor relations of legislative branch employees are governed by
the Federal Labor Relations Act, which currently does not
permit the negotiation of a union security clause. While the
rights created by H.R. 2434 do not inure to legislative branch
employees at this time, they would be available should the
Federal Labor Relations Act be amended, or a separate law
enacted, allowing the negotiation of a union security clause.
Unfunded Mandate Statement
Section 423 of the Congressional Budget & Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement of
whether the provisions of the reported bill include unfunded
mandates. The Committee received a letter regarding unfunded
mandates from the Director of the Congressional Budget Office.
See infra.
Rollcall Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee Report to include for
each record vote on a motion to report the measure or matter
and on any amendment offered to the measure or matter the total
number of votes cast for and against and the names of the
Members voting for and against.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the body of this report.
New Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the House of Representatives and section 308(a) of the
Congressional Budget Act of 1974 and with respect to
requirements of 3(c)(3) of rule XIII of the House of
Representatives and section 402 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for H.R. 2434 from the Director of the Congressional Budget
Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, December 3, 1999.
Hon. William F. Goodling,
Chairman, Committee on Education and the Workforce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2434, the Worker
Paycheck Fairness Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Christina
Hawley Sadoti.
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
H.R. 2434--Worker Paycheck Fairness Act
Summary: H.R. 2434 would place new requirements on unions
and employers relating to the payment of union dues and fees by
workers. The bill would require labor organizations with union
security agreements to obtain prior written authorization from
workers for any portion of their dues or fees that are used for
nonrepresentational activities. (A union security agreement
between an employer and a labor organization requires union and
nonunion members to pay dues or fees to the union as a
condition of employment.) In addition, the legislation would
require labor organizations to report separately their expenses
for representational and nonrepresentational activities on
financial disclosure forms filed with the Department of Labor
(DoL). The bill would also require all employers with workers
who are represented by unions to post notices regarding their
union's duty to obtain authorization before accepting required
dues or fees that are partially used to fund
nonrepresentational activities.
CBO estimates that implementing H.R. 2434 would cost the
Department of Labor about $2 million per year beginning in
fiscal year 2000 and about $9 million over the 2000-2004
period, assuming appropriation of the necessary funds. Because
the bill would not affect direct spending or receipts, pay-as-
you-go procedures would not apply.
H.R. 2434 contains both intergovernmental and private-
sector mandates, as defined in the Unfunded Mandates Reform Act
(UMRA). CBO estimates that the cost to state, local, or tribal
governments to comply with the mandates would not exceed the
threshold established in that act ($50 million in 1996,
adjusted annually for inflation). CBO is uncertain whether the
direct costs of complying with the private-sector mandates
would exceed the threshold specified in UMRA ($100 million in
1996, adjusted annually for inflation) in the first year the
bill would be effective. We estimate that the direct cost of
those mandates would not exceed the threshold in subsequent
years.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 2434 is shown in the following table.
The costs of this legislation fall without budget function 500
(education, training, employment, and social services).
------------------------------------------------------------------------
By fiscal year, in millions of
dollars--
---------------------------------------
2000 2001 2002 2003 2004
------------------------------------------------------------------------
WITH ADJUSTMENTS FOR INFLATION
Authorizations of Appropriations
Under Current Law \1\:
Estimated Authorization..... 337 351 363 375 387
Estimated Outlays........... 339 350 362 374 386
Proposed Changes:
Estimated Authorization..... 2 2 2 2 2
Estimated Outlays........... 1 2 2 2 2
Authorizations of Appropriations
Under H.R. 2434:
Estimated Authorization..... 339 353 365 377 389
Estimated Outlays........... 340 352 364 376 388
WITHOUT ADJUSTMENTS FOR INFLATION
Authorizations of Appropriations
Under Current Law:
Estimated Authorization..... 337 337 337 337 337
Estimated Outlays........... 339 337 337 337 337
Proposed Changes:
Estimated Authorization..... 2 2 2 2 2
Estimated Outlays........... 1 2 2 2 2
Authorizations of Appropriations
Under H.R. 2434:
Estimated Authorization..... 339 339 339 339 339
Estimated Outlays........... 340 339 339 339 339
------------------------------------------------------------------------
\1\ Salaries and expenses of the Employment Standards Administration.
The figures for fiscal year 2000 reflect the appropriation for that
year.
H.R. 2434 would require labor organizations to provide more
information in financial disclosure forms that they file with
DoL. In 1999, about 31,500 labor organizations filed such
forms. H.R. 2434 would require DoL to develop new forms for
these organizations to use. In addition, DoL would need to
provide compliance assistance and training on these new forms
and would incur additional costs for processing them. In 1992,
the Administration sought to make changes similar to those
provided for in H.R. 2434 through administrative action. At
that time, DoL estimated the additional costs of developing new
forms, providing necessary compliance assistance, and
processing cases at $1.35 million per year. Adjusted for
inflation these costs would be about $1.7 million in fiscal
year 2000 and slightly larger amounts each year thereafter.
H.R. 2434 also would require employers of workers who are
covered by collective bargaining agreements to post notices
regarding their union's responsibility to obtain authorization
in order to spend a portion of their dues or fees on
nonrepresentational activities. Currently, employers are
required to post notices regarding minimum wage and maximum
hour requirements, equal opportunity and anti-discrimination
provisions, and other information regarding workplace safety.
The federal costs of enforcing the requirement to post
additional information would not be significant.
Pay-as-you-go considerations: None
Estimated impact on state, local and tribal governments:
H.R. 2434 contains two intergovernmental mandates as defined in
UMRA. The bill would require employers (including state, local,
and tribal governments) that allow collective bargaining to
post notices informing employees of their new rights under the
bill. The bill also would require state courts to impose
certain remedies for violations of employees' rights under the
bill. CBO estimates that even if all state, local, and tribal
governments in states that allow collective bargaining were
required to post notices, compliance costs would not be
significant. The new requirements for state courts would not
result in any additional costs because they just specify
certain elements of judgments to be awarded by the courts.
Estimated impact on the private sector: H.R. 2434 would
impose two new private-sector mandates--one on labor
organizations and one on employers--and expand an existing one
on labor organizations. CBO cannot determine whether the
aggregate direct cost of the three mandates in H.R. 2434 would
exceed the statutory threshold specified in UMRA ($100 million
in 1996, adjusted annually for inflation) during the first year
the mandates would be effective. The cost of each mandate would
decline substantially after the first year, however. CBO
estimates that the aggregate direct cost of the mandates in the
second through fifth years would not exceed the statutory
threshold.
First, the bill would require labor organizations with
union security agreements to obtain prior written authorization
from workers for any portion of their dues or fees that are
used for activities other than employee representation. In
1988, the Supreme Court decided in Communication Workers of
America v. Beck that nonunion workers who are required to pay
dues or fees to a union need only pay for the share of union
expenses used for representational activities. To exercise this
right, however, the workers must formally object to the payment
of the higher fee.
The cost of this mandate would be greatest in the first
year because affected labor organizations would have to request
authorizations from all of their current workers. Subsequently,
unions could add an authorization form to the normal hiring
process, thereby covering any new employees. The cost to unions
in the first year would depend on the number of workers from
whom authorizations would be requested and the average cost of
making such a request. Little information is available on
either of these quantities. Currently, 29 states allow union
security agreements. A total of 13.2 million union members, and
an additional 1.1 million workers represented by unions, were
employed in these states in 1998. The proportion of these
workers employed under union security agreements is unknown.
Furthermore, only unions that spend a significant portion of
their funds on nonrepresentational activities would have a real
incentive to obtain authorizations. Because the prevalence and
magnitude of spending on nonrepresentational activities is not
known, CBO cannot estimate how many labor organizations with
union security agreements would actually request
authorizations.
Second, the bill would increase financial reporting
requirements for labor organizations. Unions would have to
report separately their expenses for representational and
nonrepresentational activities. Under current law, labor
organizations must file financial disclosure forms with the
Department of Labor. The financial disclosure forms, however,
do not report the purposes of these expenditures.
All labor organizations that currently file financial
disclosure forms with the Department of Labor would have to
comply with the bill's reporting requirements. In 1999, there
were about 31,500 such labor organizations, and the cost of
reporting requirements would vary significantly. CBO cannot
estimate an average cost per organization because comprehensive
data on the type, size, and activities of labor organizations
do not exist. The cost would be greatest in the first year the
requirement would be in effect because many labor organizations
would have to set up new reporting and accounting systems. In
the following years, the cost would decline significantly. For
some organizations with union security agreements, even the
initial cost might be small because, under current law, they
must disclose their nonrepresentational expenses and calculate
reduced fees for nonmembers who formally object to paying for
such expenses.
Finally, H.R. 2434 would require all employers with workers
who are represented by a union to post notices informing their
workers of the union's duty to obtain their authorization if
some of their required dues or fees are used for
nonrepresentational purposes. These requirements would impose a
largely one-time cost on employers with union workers. To
comply with these requirements, employers would have to post
notices in at least one area in each of their establishments.
Currently, all employers are required to post notices regarding
fair labor standards and workplace safety requirements. This
new posting mandate, however, would apply only to employers of
workers covered by collective bargaining agreements. Of the
approximately 3 million establishments with paid employees, the
share with union workers is not known. In any case, the cost
per notice could be quite small. Therefore, CBO estimates that
the overall cost of this mandate to employers would be less
than $10 million in the first year the mandate is effective and
negligible in later years.
Estimate prepared by: Federal Cost: Christina Hawley
Sadoti. Impact on State, Local, and Tribal Governments: Susan
Sieg. Impact on the Private Sector: Karuna Patel.
Estimate approved by: Robert A. Sunshine, Assistant
Director for Budget Analysis.
Statement of Oversight Findings of the Committee on Government Reform
With respect to the requirement of clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives, the
Committee has received no report of oversight findings and
recommendations from the Committee on Government Reform on the
subject of H.R. 2434.
Constitutional Authority Statement
Under clause 3(d)(1) of rule XIII of the Rules of the House
of Representatives, the Committee must include a statement
citing the specific powers granted to Congress in the
Constitution to enact the law proposed by H.R. 2434. H.R. 2434,
the Worker Paycheck Fairness Act, provides rights to workers
subject to union security agreements negotiated under the
National Labor Relations Act (NLRA) and the Railway Labor Act
(RLA). Both the RLA \62\ and the NLRA \63\ have been
determined, by the Supreme Court, to be within Congress'
Constitutional authority. Because the Worker Paycheck Fairness
Act places additional restrictions on the use of dues or fees
paid to labor organizations pursuant to union security clauses
under the NLRA and RLA, the legislation is similarly within the
scope of Congressional powers under Article 1, Section 8,
Clause 3 of the Constitution of the United States.
---------------------------------------------------------------------------
\62\ Texas & New Orleans Railroad v. Brotherhood of Railway &
Steamship Clerks, 281 U.S. 548 (1930).
\63\ National Labor Relations Board v. Jones & Laughlin Steel
Corp., 301 U.S. 1 (1937).
---------------------------------------------------------------------------
Committee Estimate
Clauses 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 2434. However, clause 3(d)(3)(B) of that rule provides
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
bill prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959
* * * * * * *
TITLE II--REPORTING BY LABOR ORGANIZATIONS, OFFICERS AND EMPLOYEES OF
LABOR ORGANIZATIONS, AND EMPLOYERS
report of labor organizations
Sec. 201. (a) * * *
(b) Every labor organization shall file annually with the
Secretary a financial report signed by its president and
treasurer or corresponding principal officers containing the
following information in such detail as may be necessary
accurately to disclose its financial condition and operations
for its preceding fiscal year--
(1) * * *
* * * * * * *
Every labor organization shall be required to attribute and
report expenses in such detail as necessary to allow members to
determine whether such expenses were necessary to performing
the duties of the exclusive representative of the employees in
dealing with the employer on labor-management issues.
(c) Every labor organization required to submit a report
under this title shall make available the information required
to be contained in such report to all its members and employees
required to pay any dues or fees to such organization, and
every such labor organization and its officers shall be under a
duty enforceable at the suit of any member or employee required
to pay any dues or fees to such organization of such
organization in any State court of competent jurisdiction or in
the district court of the United States for the district in
which such labor organization maintains its principal office,
to permit such member or employee required to pay any dues or
fees to such organization for just cause to examine any books,
records, and accounts necessary to verify such report. The
court in such action may, in its discretion, in addition to any
judgment awarded to the plaintiff or plaintiffs, allow a
reasonable attorney's fee to be paid by the defendant, and cost
of the action.
* * * * * * *
reports made public information
Sec. 205. (a) * * *
(b) The Secretary shall by regulation make reasonable
provision for the inspection and examination, on the request of
any person, of the information and data contained in any report
or other document filed with him pursuant to sections 201, 202,
203, or 211. Upon written request, the Secretary shall make
available complete copies of any report or other document filed
pursuant to section 201.
* * * * * * *
DISSENTING VIEW OF RON PAUL
i. introduction
The use of union dues, which, in the 29 non-Right to Work
states workers must pay as a condition of employment, for
political causes opposed by the worker is, in the words of
Thomas Jefferson ``both sinful and tyrannical.'' However, this
congressionally-created wrong does not justify the expansion of
federal power over the relationship between unions, workers,
and employees contained in the Worker Paycheck Fairness Act
(H.R. 2434). The Worker Paycheck Fairness Act not only
continues congressional unconstitutional interference in
America's labor markets, it also fails to deal with the root
cause of the problem. Furthermore, it is doubtful that the new
regulations and mandates in this bill will achieve the goal of
stopping union officials from using force dues for politics.
The problem of using of compulsory union dues for politics
is rooted in those federal laws that equally sanction
compulsory unionism. Federal laws authorizing compulsory dues
for any reason violate the principle of individual liberty upon
which this country was founded. Therefore, the constitutional
solution to the problem of the use of forced dues for politics
(or any other reason) is to repeal those sections of federal
law giving union officials the power to force workers to pay
union dues as a condition of employment.
ii. h.r. 2434 creates new burdens on employers, unions and employees
The Worker Paycheck Fairness Act sets up a new federal
regulatory system, complete with mandates on union officials,
employers and workers, to control union political spending.
Under this bill unions wishing to spend dues receipts on
politics must obtain a signed statement from every dues-paying
worker authorizing the use of their dues for political
purposes. The bill also requires unions to produce more
detailed expense reports so workers can determine how much of
their expenses were spent on items other than collective
bargaining.
These requirements will impose tremendous costs on labor
unions, costs which Congress has no authority to impose.
Supporters of this bill may attempt to justify imposing this
burden on labor union as necessary to ensure union officials do
not abuse their federally-granted privilege of collecting
compulsory dues. However, Congress' original abuse of its
authority to empower union officials in no way justifies
federal interference in a union's internal operations. Unions
are constitutionally entitled to the same freedom from federal
mandates as every other private institution in America. The
power to force employees to pay dues that are used for
political purposes, which unions have as a result of federal
protections, is a justification for repealing those laws, not
for placing new mandates on unions, employees, and employers.
This bill also places a new, unfunded mandate on businesses
by requiring every employer to post a notice in their workplace
informing workers of their rights under this statute. Mandating
that employers place a notice on their property constitutes a
taking of private property, however minor, without just
compensation.
The Worker Paycheck Fairness Act will also place new
burdens on the very people who the act is designed to aid: the
American worker. For example, millions of American workers will
likely be faced with an increase in union dues in order to
cover the additional costs incurred in complying with this
mandate.
Furthermore, requiring workers to sign a card stating
whether or not they wish to contribute to union politics
burdens the free speech rights of both those workers who would
wish to support union political activity and those who do not
wish to underwrite union politics. Workers should not be
required to fill out paperwork, that may later become part of a
public record if the union's expenditures are challenged in
court, in order to exercise their first amendment rights to
participate (or not participate) in politics. Rather than
having to comply with government mandates to ensure their
forced union dues are spent properly, workers should simply be
returned the freedom to choose whether or not they will pay
union dues for any purpose.
A further infringement on the rights of union members is
the provision providing that a worker who objects to having
part of his dues used for union officials is still entitled to
all the rights and privileges of union membership. This is an
infringement on the freedom of association rights of those who
chose to pay for union politics freedom of association. A union
should have the ability to determine its own rules for
membership, Congress should not force those who pay for union
politics to associate with those who choose not to pay for
political activities.
Ironically, this infringement of the union members' freedom
of association is rooted in the special privileges granted
union officials by federal law. Under the National Labor
Relations Act, union officials have the power to represent all
employees at a worksite, whether or not they are members of the
union or even whether or not they desire union representation.
Furthermore, employers at a unionized workplace are forbidden
by federal law from bargaining over working conditions with any
individual employee, a violation of the employee and the
employers' right to freely contract. Therefore, a union dues
payer who objects to the use of union dues and gives up his
membership in the union, is, in essence, giving up his right to
have a say in his wages, hours, and benefits. The fate of the
unions under this bill is yet another example of how those who
seek to enrich themselves by seeking special privileges from
the federal government eventually lose their own liberties to
the leviathan state they helped construct.
iii. h.r. 2434 will not curtail the use of forced dues for politics
It is highly questionable as to whether placing these
mandates on unions and employees will effectively curtail the
use of forced-union dues for politics. Several times since the
passage of the National Labor Relations Act, Congress has
amended the law to provide for greater federal control of labor
unions, yet union corruption remains a serious problem, as
evidenced by the voiding of recent government supervised and
financed Teamster elections. Given this history it appears
likely that when dishonest union officials battle federal
regulators over political spending, the union officials will
successfully disguise their spending on politics as funds spend
of purposes related to ``exclusive representation.''
One of the goals of the act is to end the harassment of
workers who assert their right not to pay for politics. This is
certainly a laudable goal. One of the most shameful aspects of
the modern labor movement is the all-too-frequent use of
threats and even actual violence against workers who object to
the policies of union officials. However, it is unlikely that
this bill will stop corrupt unions from harassing independent-
minded workers. If this bill becomes law, corrupt unions will
harass workers who refuse to authorize the use of their dues
for politics, or who challenge union officials in occur for a
refund of those dues allegedly spend for politics.
The persecution of workers by unscrupulous union officials
will continue until Congress repeals the federal laws that give
unions the power to coerce workers to pay union dues and accept
union representation, since corrupt union officials' ability to
tyrannize workers flows from the unconstitutional powers grated
them by Congress.
iv. h.r. 2434 implicity legitimizes compulsory unionism
The primary reason Congress should reject this bill is its
faulty premise. By stating, in the very first finding, that
``Workers who pay [union] dues may not * * * be required to pay
to that organization any dues or fees supporting activities
that are not necessary to performing the duties of the
exclusive representation of the employee * * *'' the drafters
of this bill implicitly accept the legitimacy of compulsory
unionism, as long as the dues collected by compulsion are not
spent for political purposes. However, union political spending
per se should not be the concern of Congress. Even if union
political spending as 10 times as much as it is now it would
not be a proper subject of Congressional regulation--as long as
it was from voluntary dues. Conversely, even if union officials
never spend another dime on politics. Congress would still be
morally obligated to repeal those laws empowering union
officials to force workers to pay dues for any purposes. It is
the collection of forced dues that damages our system--not any
particular use to which those dues are put!
The problems with H.R. 2434 were eloquently stated by Harry
Beck, the lead plaintiff in the Supreme Court case which
established the right of forced-dues payers to a refund of that
portion of their dues spend on politics, ``you don't solve the
forced dues in politics problems by letting the union bosses
keep the force while trying to micro-managed their `politics.'
The government lawyers, accountants and bureaucrats love that
approach [i.e. the approach contained in H.R. 2434] because it
would give them job security. The legislative solution to
coercion isn't to keep it under a GOP-approved system of
regulation--but to end it!''
v. conclusion
The Workers Paycheck Fairness Act (H.R. 2434) attempts to
address the very serious problem of the use of forced union
dues for political purposes through the establishment of a new
system of coercion. This bill places new mandates on workers,
employers, as well as on unions. The system established in H.R.
2434 not only compounds the constitutional violations of the
federal laws that give unions the power to force workers to pay
union dues, it also will fail to address the problem it is
designed to solve. If this bill becomes law, corrupt union
officials will simply use ``creative accounting'' to
distinguish their political spending and/or use force and
intimidation to ensure workers ``consent'' to having their
forced dues spent on politics.
In its attempt to solve a congressional-created problem
with new restrictions on American liberties, H.R. 2434
parallels proposals to ``reform'' campaign finance by limiting
freedom of speech as both expand government power rather than
attack the root cause of the problem--too much ``congressional
activism'' in which constitutionally are non-government
affairs!
Instead of passing an unconstitutional, ineffective law,
Congress should follow the advice of Harry Beck--stop trying to
regulate union officials' use of the fruits of their coercion
and repeal the unconstitutional laws that authorize the
collection of forced dues. Only by revoking union officials'
legislatively-ordained coercive privileges can Congress end the
scourge of forced dues for politics and restore true freedom to
America's labor markets.
Ron Paul.
MINORITY VIEWS
H.R. 2434 is coldly calculated to cripple the ability
unions and the workers they represent to effectively
participate in the political affairs of the nation. In effect,
this legislation seeks to effectively disenfranchise American
workers.
In the name of enforcing the right of a minority to dissent
from engaging in political activity, this legislation
deliberately and intentionally tramples on the right of the
majority to do so. The legislation infringes on the right of
workers to establish their own rules regarding union
membership. The legislation infringes on the right of workers
to determine for themselves the activities of their own
organizations. The legislation imposes costly, crippling
paperwork requirements upon unions, thereby effectively
imposing a punitive tax on all those represented by unions.
While imposing unreasonable and unfair infringements on the
rights of workers to engage in political activity through their
unions, the legislation places no restrictions at all on the
political activities of employers or employer associations. To
justify this blatant, one-sided attempt to distort the
democratic process, the majority has dismissed, ignored, or
distorted the substantial protections afforded by existing law
to all those represented by unions.
H.R. 2434 is a deliberate, calculated effort to place
unions and the workers they represent at a unique and
substantial disadvantage with regard to their ability to
participate in politics as compared to any other group. This
legislation is not about protecting free and open political
debate, it is about the ability of one group of Americans--
workers--to participate in that debate. What this legislation
ultimately seeks to accomplish is to distort the democratic
processes of this country. At the least, it was the hope of the
Republican leadership to use this legislation, or similar
legislation, to blame Democrats for their failure to enact
campaign finance reform legislation. At the most, Republicans
hope to silence their perceived political enemies, those who
advocate for and on behalf of workers. To state that either
goal is ignoble is to understate the fact.
In fact, the legislation is too obviously unfair to
accomplish any goal. In the 105th Congress, a similar proposal
to attempt to gag workers, H.R. 2608, was considered on the
floor and defeated by vote of 166 to 246. Fifty-two Republicans
joined with Democrats to defeat that effort. In addition,
during consideration of H.R. 2183, the bipartisan Campaign
Reform Act of 1988, the House rejected an amendment by Mr.
Paxon, House Amendment 744, that would have imposed reporting
requirements on union political activities by a vote of 150-
248, and adopted an amendment by Mr. Shays, House Amendment
690, that, among other provisions, codified the Beck decision
by a vote of 237-186. In this Congress, Mr. Goodling again
offered an amendment that was the substance of H.R. 2434 to
H.R. 417, the Bipartisan Campaign Reform Act of 1999. That
amendment was withdrawn without a vote because it was clear
that the amendment would not pass.
Current law protects the rights of union objectors
Republican assertions that current labor laws run roughshod
over dissenting union members are not simply false, but gross
distortions. Republicans contend falsely, that unions may force
workers to pay for union political activity. In fact, no
employee may be required to join a union as a condition of
employment. Membership in a union is purely voluntary. Nor is
any employee required, as a condition of employment to
underwrite union political activity.
Unions, by law, are democratic organizations whose officers
and policies are required to be determined by the majority will
of their members. In fact, the democratic principles embodied
in our labor laws are borrowed from the democratic procedures
we use and honor all across the country when we choose our city
councils, our mayors, our school boards, and Members of
Congress.
Unions are required by law to inform all employees who are
subject to a collective bargaining agreement, including an
agency fee or union security provision, that they are not
required to pay any part of the union dues that are used for
purposes that are not germane to collective bargaining,
contract administration, or grievance adjustment. Unions must
inform such employees of the percentages of their union dues
that are used for purposes that are not germane to collective
bargaining, contract administration, or grievance adjustment.
Moreover, unions must establish procedures to ensure that those
employees who choose not to support the union's political
activity, do not pay any part of the union dues that are used
for purposes that are not germane to collective bargaining,
contract administration, or grievance adjustment.
Those who believe their right to refrain from paying for
any union activity unrelated to collective bargaining, contract
administration, or grievance adjustment have not just one, but
two different forums by which they may seek remedy. They may
file a complaint with the National Labor Relations Board, in
which case the Government, rather than the employee, will
undertake the cost of investigation and, if merited, the
prosecution of the allegation. Alternatively, the employee may
sue the union directly for violating its duty of fair
representation.
In fact, those who are represented by unions have extensive
rights under current law. By law, unions are democratic
organizations whose officers and policies are required to be
determined by the majority will of their members. By law, as
discussed in more detail below, unions are already under more
extensive reporting and disclosure requirements than virtually
all other institutions in the country, and are required to
report all of their income and expenditures to members, to the
Government, and to the public. Under the National Labor
Relations Act, bargaining unit members have a statutory right
to either nullify the agency fee provision of a contract or
decertify the union if the majority feels that either the
agency fee provision or the union is no longer in their best
interest. Union members have a statutory right to inspect their
union's books and to vote on the amount of dues the union will
charge its members. The National Labor Relations Act prohibits
unions from charging those who are subject to an agency fee
provision excessive or discriminatory fees. In short, the
alleged evil this legislation seeks to correct is one that has
already been rendered nonexistent by law.
If the polls cited by the majority for the proposition that
union members support ``up-front'' consent are accurate, it is
fully within the ability of those union members to implement
such a requirement. In fact, however, public opinion polls show
that members like their unions speaking out on their behalf. A
poll by Peter Hart Associates taken after the 1996 election
found that 85 percent of members supported their union's fight
to increase the minimum wage and protect Medicare. They also
strongly supported voter guides, voter encouragement efforts,
and efforts to lobby Members of Congress on issues affecting
working families. These are the very kinds of activities
Republicans want to squelch with its shut down of union
democracy.
Beyond providing that union dues and initiation fees, as
well as union constitutions and bylaws, must be established
pursuant to majority will, section 8(b)(5) of the NLRA \1\
makes it an unfair labor practice subject to regulation by the
National Labor Relations Board (NLRB) for a union to impose
excessive or discriminatory fees on employees who are subject
to a union security or agency fee provision.
---------------------------------------------------------------------------
\1\ 29 U.S.C 158(b)(5).
---------------------------------------------------------------------------
Unions are already under more extensive reporting and disclosure
requirements than virtually all other institutions in the
country
H.R. 2434 imposes onerous reporting burdens on unions, yet
unions are already subject to extensive reporting and
disclosure requirements. Subchapter III of the LMRDA requires
unions to file full reports regarding the procedures by which
the union operates \2\ and annual reports detailing the
financial condition of the union including all receipts and
expenditures by the union.\3\ In addition, the LMRDA
specifically provides:
---------------------------------------------------------------------------
\2\ 29 U.S.C 431(a).
\3\ 29 U.S.C 431(b).
Every labor organization required to submit a report
under this subchapter shall make available the
information required to be contained in such report to
all of its members, and every such labor organization
and its officers shall be under a duty enforceable at
the suit of any member of such organization in any
State court or competent jurisdiction or in the
district court of the United States for the district in
which such labor organization maintains its principal
office, to permit such member for just cause to examine
any books, records, and accounts necessary to verify
such report.\4\
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\4\ 29 U.S.C 431(c).
As James B. Coppess stated in testimony before the
---------------------------------------------------------------------------
Subcommittee on Employer-Employee Relations on March 18, 1997:
Given this legal structure, there is no room to doubt
that the decisions unions make to support or oppose
particular pieces of legislation or particular
candidates for public office, and the decisions unions
make to expend money in support of such views, reflect
the views of the majority of union members. Indeed, one
reason workers form unions in the first instance is
precisely to be able to band together to participate in
legislative and political affairs.
Unions have a long and proud tradition of participating in the
political process, and union members are well aware of and
supportive of this tradition
The fact that unions engage in political activity is, of
course, neither new nor news. As Justice Felix Frankfurter has
pointed out, ``It is not true in life that political protection
is irrelevant to, and insulated from, economic interests. It is
not true for industry or finance. Neither is it true for
labor.'' \5\ Labor unions have recognized this since their
inception. As Justice Frankfurter stated:
---------------------------------------------------------------------------
\5\ Machinists v. Street, 367 U.S. 740, 814-815 (1916) (dissenting
opinion).
To write the history of the [Railroad] Brotherhoods,
the United Mine Workers, the Steel Workers, the
Amalgamated Clothing Workers, the International Ladies
Garment Workers, the United Auto Workers, and leave out
their so-called political activities would be sheer
mutilation. Suffice it to recall a few illustrative
manifestations. The AFL, surely the conservative labor
group, sponsored as early as 1893 an extensive program
of political demands calling for compulsory education,
an eight-hour day, employer tort liability, and other
social reforms. The fiercely contested Adamson Act of
1916 was a direct result of railway union pressure
exerted upon both the Congress and the President. More
specifically, the weekly publication ``Labor''--an
expenditure under attack in this case--has since 1919
been the organ of the railroad brotherhoods which
finance it. Its files through the years show its
preoccupation with legislative measures that touch the
vitals of labor's interests and with men and parties
who effectuate them. This aspect--call it the political
side--is as organic, as inured a part of the philosophy
and practice of railway unions as their immediate
bread-and-butter concerns.\6\
---------------------------------------------------------------------------
\6\ Id. at 800.
Nor, contrary to the impression the majority has sought to
foster, have unions ever made a secret of their political
activity. Indeed, to do so in a democratic society such as ours
is obviously and inherently counterproductive. As Mr. Coppess
---------------------------------------------------------------------------
has testified:
Over the years, the labor movement has led the
crusade for enactment of the minimum wage and the
forty-hour workweek, for laws protecting occupational
safety and health, assuring the security of pensions,
and prohibiting invidious discrimination in employment.
We have done so because union members, acting through
the democratic processes of the unions, decided that it
was right and proper to do so--for the sake not just of
union members but of all working Americans. And, today
we continue to advance the interests of working
families by leading the effort to preserve and
strengthen the employee-protective laws, and to protect
the system of social insurance on which workers and
older Americans depend.\7\
---------------------------------------------------------------------------
\7\ Prepared statement of James B. Coppess, Hearing on Mandatory
Union Dues, Before the Subcommittee on Employer-Employee Relations,
105th Cong., 1st Sess. (March 18, 1997).
---------------------------------------------------------------------------
[W]orkers know that unions attempt to advance the
interests of those they represent through political
action. Workers know that when they vote for union
representation. Workers know that when they vote to
approve collective bargaining agreements containing
union security clauses requiring everyone to pay their
fair share for representation. And workers know that
when they vote on the level of dues they are willing to
pay and on the leaders who will set their union's
agenda.
Workers make these decisions with their eyes wide
open about union political activity--as to both the
fact of such activity and its cost. Indeed, unions are
required to disclose more about their finances than any
other organization of which I am aware. And if the
membership want more information, it is free to elect
leaders promising such or to amend their organization's
constitution and bylaws to so provide.
Anyone who claims that unions could pursue the
political course they have consistently followed
without substantial majority support is willfully
misunderstanding the relationship between elected
leaders and representatives and their constituency. \8\
---------------------------------------------------------------------------
\8\ Hearing on H.R. 3580, the Worker Right to Know Act, Before the
Subcommittee on Employer-Employee Relations, 104th Cong., 2nd Sess., at
320 (June 19, 1996)(Serial No. 104-66).
Claims by anyone that they did not know that unions engaged
in political activity are, at best, disingenuous.
The resolution of whether employees may be required to
underwrite activities of a union that are not germane to
collective bargaining, contract administration, or grievance
adjustment has been more recently decided. Since 1947, the NLRA
has provided that in States that have not enacted so called
``right-to-work'' laws, a union may seek to negotiate a
provision in its collective bargaining agreement providing that
all workers represented by the union may be required to share
equally in the cost of that representation as a condition of
employment. These provisions are generally known as agency fee
or union security provisions. In the 21 States that have
enacted ``right-to-work laws,'' though a union remains liable
for providing fair representation to all workers it represents,
no worker may be required under the NLRA to pay anything to a
union for the costs of providing that representation.
As originally enacted in 1935, the NLRA permitted unions
and employers to negotiate so called ``closed shop''
agreements, agreements whereby an employer refused to hire
anyone who was not already a member of the union. Section
8(a)(3) of the NLRA makes it unlawful for an employer to
``discriminate in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage
membership in any labor organization.'' This provision,
standing alone, would preclude the payment of any dues or fees
to a union as a condition of employment. However, as originally
enacted, the language was qualified by a proviso stating that
``nothing in [the NLRA] or in any other statute of the United
States, shall preclude an employer from making an agreement
with a labor organization * * * to require as a condition of
employment membership therein * * * if such labor organization
is the representative of the employees. * * *''
A Republican Congress, as part of the Taft-Hartley
Amendments of 1947, specifically amended section 8(a)(3) of the
NLRA, until then section 8(3), to limit the provisions of the
first proviso by adding the following:
[N]o employer shall justify any discrimination
against an employee for nonmembership in a labor
organization (A) if he has reasonable grounds for
believing that such membership was not available to the
employee on the same terms and conditions generally
applicable to other members, or (B) if he has
reasonable grounds for believing that membership was
denied or terminated for reasons other than the failure
of the employee to tender the periodic dues and the
initiation fees uniformly required as a condition of
acquiring or retaining membership.
In addition, the Taft-Hartley amendments added section
8(b)(2), which makes it unlawful for a union ``to cause or
attempt to cause an employer to discriminate against an
employee in violation of subsection 8(a)(3) of this section or
to discriminate against an employee with respect to whom
membership in such organization has been denied or terminated
on some ground other than this failure to tender the periodic
dues and the initiation fees required as a condition of
acquiring or retaining membership.''
The effect of the 1947 amendment was to preclude
contractual provisions requiring an employee to join a union as
a condition of employment. ``If an employee in a union shop
unit refuses to respect any union-imposed obligations other
than the duty to pay dues and fees, and membership in the union
is therefore denied or terminated, the condition of
`membership' for 8(a)(3) purposes is nevertheless satisfied and
the employee may not be discharged for nonmembership even
though he is not a formal member.'' \9\
---------------------------------------------------------------------------
\9\ Labor Board v. General Motors, 373 U.S. 734, 743 (1963).
---------------------------------------------------------------------------
The fact that an employee cannot be required to join a
union as a condition of employment has clearly and
unambiguously been a matter of settled law for decades.
Sections 8(a)(3) and 8(b)(2), when read in conjunction, provide
that an employee who pays full union dues and fees has a
statutory right to be a member of a union, but also has a
statutory right to refrain from formally doing so.
In 1988, the Supreme Court made it clear in Communication Workers v.
Beck, that no worker can be compelled to support union
political activity
Until Communication Workers v. Beck was decided 1988, the
Supreme Court had ``never before delineated the precise limits
8(a)(3) places on the negotiation of and enforcement of union-
security agreements. * * *'' \10\ However:
---------------------------------------------------------------------------
\10\ Communication Workers v. Beck, 487 U.S. 735, 745 (1988).
---------------------------------------------------------------------------
Over a quarter century ago we held that 2, Eleventh
of the RLA does not permit a union, over the objections
of nonmembers, to expend compelled agency fees on
political causes. Because the NLRA and RLA differ in
certain crucial respects, we have frequently warned
that decisions construing the latter often provide on
the roughest of guidance when interpreting the former.
Our decision in [Machinists v. Street, 367 U.S. 740
(1961)], however, is far more than merely instructive
here: we believe it is controlling, for 8(a)(3) and 2,
Eleventh are in all material respects identical. * * *
Thus, in amending the RLA in 1951, Congress expressly
modeled 2, Eleventh on 8(a)(3), which it had added to
the NLRA only four years earlier, and repeatedly
emphasized that it was extending ``to railroad labor
the same rights and privileges of the union shop that
are contained in the Taft-Hartley Act.'' In these
circumstances, we think it clear that Congress intended
the same language to have the same meaning in both
statutes.\11\
---------------------------------------------------------------------------
\11\ Id., at 745-747 (citations omitted).
The clearness with which the Court majority saw the issue
was not as apparent to all observers as the dissent of Justice
Blackmun, in which Justices O'Connor and Scalia joined,\12\
illustrates.
---------------------------------------------------------------------------
\12\ Justice Brennan delivered the opinion of the Court, in which
Chief Justice Rehnquist, and Justices White, Marshall, and Stevens
joined. Justices Blackmun, O'Connor, and Scalia concurred in part and
dissented in part. Justice Kennedy took no part in the consideration or
decision of the case.
The Court's conclusion that 8(a)(3) prohibits
petitioners from requiring respondents to pay fees for
purposes other than those ``germane'' to collective
bargaining, contract administration, and grievance
adjustment simply cannot be derived from the plain
language of the statute. In effect, the Court accepts
respondents' contention that the words ``dues'' and
``fees,'' as used in 8(a)(3), refer not to the periodic
amount a union charges its members but to the portion
of that amount that the union expends on statutory
collective bargaining. Not only is this reading
implausible as a matter of simple English usage, but it
is also contradicted by the decisions of this Court and
of the NLRB interpreting the section. Section 8(a)(3)
does not speak of ``dues'' and ``fees'' that employees
covered by a union-security agreement may be required
to tender to their union representative; rather, the
section speaks only of ``the periodic dues and
initiation fees uniformly required as a condition of
acquiring and retaining membership.'' Thus, the
section, by its terms, defines ``periodic dues'' and
``initiation fees'' as those dues and fees ``uniformly
required'' of all members, not a portion of full dues.
As recognized by this Court, ``dues collected from
members may be used of a variety of purposes, in
addition to meeting the union's costs of collective
bargaining. Unions rather typically use their
membership dues to do those things which the members
authorize the union to do in their interest and on
their behalf.'' By virtue of 8(a)(3), such dues may be
required from any employee under a union-security
agreement. Nothing in 8(a)(3) limits, or even
addresses, the purposes to which a union may devote the
moneys collected pursuant to such an agreement.
The Court's attempt to squeeze support from the
legislative history for its reading of congressional
intent contrary to the plain language of 8(a)(3) is
unavailing. As its own discussion of the relevant
legislative materials reveals, ante, at 747-750, there
is no indication that the 1947 Congress intended to
limit the union's authority to collect from nonmembers
the same periodic dues and initiation fees it collects
from members. Indeed, on balance, the legislative
history reinforces what the statutory language
suggests: the provisos neither limit the uses to which
agency fees may be put not require nonmembers to be
charged less than the ``uniform'' dues and initiation
fees.\13\
---------------------------------------------------------------------------
\13\ Id., at 768-770 (citations omitted).
Notwithstanding the dissent, however, the Beck decision has
settled the issue of whether 8(a)(3) ``includes the obligation
to support union activities beyond those germane to collective
bargaining, contract administration, and grievance
adjustment.'' \14\ In the words of the Court, ``We think it
does not.'' \15\ Since 1988, it has been unlawful to require
any employee, as a condition of employment, to financially
support through the payment of dues or fees union activities
that are not germane to collective bargaining, contract
administration, or grievance adjustment.
---------------------------------------------------------------------------
\14\ Id., at 745.
\15\ Id.
---------------------------------------------------------------------------
Beck Rights are aggressively enforced
The majority contends that, despite the Beck decision,
``Beck rights remain illusory.'' The contention does not stand
up when compared to the facts. Proponents of H.R. 2434 assert
that the National Labor Relations Board has not protected Beck
rights. As Mr. Coppess has testified:
In California Saw & Knife Works,\16\ the NLRB--
largely following rules announced by the NLRB General
Counsel at the time Beck was decided in 1988--imposed
an exacting set of requirements on labor unions which
seek to collect agency fees. The Board first held that
before a union may require a nonmember to pay such a
fee, the union must inform the nonmember of his right
to object to paying for activities ``not germane to the
union's duties as bargaining agent'' and his right to
``obtain a reduction in fees for such activities.'' The
NLRB further held that a nonmember who exercises such
right by submitting an objection, must be charged a
reduced fee, reflecting the union's calculation of the
percentage of its overall expenditures devoted to
activities germane to collective bargaining. Finally,
the Board held that the objecting nonmember must be
``apprised of the * * * basis for the calculation,''
and must be notified of his right to challenge the
union's calculations.
---------------------------------------------------------------------------
\16\ 320 NLRB No. 11 (1995).
---------------------------------------------------------------------------
California Saw thus provided dissident workers, who
do not agree with the majority's decisions to pursue
certain legislative or political ends, with a fully-
developed set of rules to protect the dissident's
rights. Those rules are far more elaborate than
anything that exists to protect, for example, dissident
stockholders. And over the past six months, the Board
has made clear that it stands ready to vigorously
enforce those rules through a series of decisions
holding unions guilty of violating the law where unions
had either failed to give a Beck notice to all
nonmembers, to establish procedures through which
nonmembers could object to paying for activities
unrelated to collective bargaining, or to provide
nonmembers who submitted objections with the required
breakdown of union expenditures.\17\
---------------------------------------------------------------------------
\17\ Board cases enforcing California Saw cited by Mr. Coppess
include IUE Local 444 (Paramax Systems), 322 NLRB No. 1 (Aug. 27,
1996); Production Workers Local 707 (Mayo Leasing), 322 NLRB No. 9,
(Aug. 27, 1996); Laborers Local 265 (Fred A. Newman Co.), 322 NLRB No.
47 (Sept. 30, 1996); Carpenters Local 943 (Oklahoma Fixture Co.), 322
NLRB No. 142 (Jan. 10, 1997); Theatrical Stage Employees Local 219
(Hughes-Avicom International, Inc.), 322 NLRB No. 195 (Feb. 14, 1997);
and UFCW Locals 951, 1036, and 7, 16-CB-3850 (Jan. 31, 1997) (ALJ
opinion).
---------------------------------------------------------------------------
Nor was the Board inactive during the period between the
Beck decision and California Saw. Within months of the Beck
decision, the General Counsel issued a comprehensive statement
of what she believed necessary for a union to comply with
Beck.\18\ NLRB regional offices actively prosecuted unfair
labor practice charges alleging Beck violations on the basis of
noncompliance with the General Counsel's interpretive
guidelines. Those prosecutions were continued by General
Counsels appointed under both the Bush and Clinton
administrations.
---------------------------------------------------------------------------
\18\ NLRB General Counsel Memorandum, GC-88-14 (Nov. 15, 1988).
---------------------------------------------------------------------------
As has been previously stated, an employee alleging a
violation of Beck rights may bring a charge before the NLRB,
whose decisions may be appealed to the Federal circuit courts,
or may sue a union directly in Federal district court. The
contention that a judiciary made up of large numbers of
Republican appointees has been hesitant to enforce or has
somehow diminished Beck rights is neither plausible nor
accurate. The majority, themselves, cite evidence to the
contrary, pointing out that the D.C. Circuit, in Ferriso v.
National Labor Relations Board.\19\ has concluded that a
union's calculations of the percentage of dues and fees that
are used for collective bargaining, contract administration,
and grievance adjustment must be confirmed by an independent
audit.
---------------------------------------------------------------------------
\19\ CA DC, No. 96-1321 (September 23, 1997).
---------------------------------------------------------------------------
The efforts to enforce Beck rights in a meaningful manner
is not simply reflected in the law and the efforts of the Board
and the courts to enforce the law, but is regularly reflected
in the actions of unions. During hearings, several unions
explained the practices and procedures they have undertaken to
comply with Beck. While different unions have adopted different
procedures, the practices of the International Association of
Machinists are illustrative of union efforts. According to Mark
Schneider, Association General Counsel of the Machinists:
Each year we notify all of our represented employees
through a notice in our newspaper at the end of each
year that if they wished to become dues objectors the
following year, they should make that request in
writing to our General Secretary Treasurer in
Washington, D.C. Because we require that objection
requests be submitted to a particular union officer
during a particular one-month ``window period,'' we
felt that fairness required that we provide notice to
all of our represented employees on an annual basis
describing these requirements.
We also advise our represented employees of the size
of the reduction they should expect, and of the kinds
of expenditures in sufficient detail for them to
understand what activities they are funding, and what
activities they are no longer funding, pursuant to the
union's calculation. Finally, we advise them that if,
after reviewing this material, they wish to challenge
the union's allocation, the union will provide them
with the complete audit that supports its calculation,
and so armed give them the opportunity to make that
challenge before a neutral arbitrator selected by the
American Arbitration Association. At that arbitration
the union bears the burden of justifying its expense
allocation, and agrees in advance to be bound by the
arbitrator's decision.
In order to fairly allocate union expenditures, every
union staff member keeps contemporaneous records of his
or her time, on forms specially prepared for Beck
purposes. On these records, employee time is broken
down into various categories, such as, for example,
``attending union meetings,'' ``legislative
activities,'' ``grievances and arbitration'' and so on.
From these time sheets, accountants determine how much
of the time of each of the union's departments is
properly chargeable to objectors, and how much is not.
Accountants then take the C.P.A. audited expenditure
figures from the union's general ledger, and allocate
expenditures in accordance with the percentages derived
from the time records. A summary of this material then
is provided to every dues objector, and the complete
audit is provided to any objector who requests a copy
and wishes to challenge the union's conclusion in the
neutral arbitration.
Each year, during the objector cycle, the union
escrows a sufficient sum of money to assure that,
should it be determined by an arbitrator that it has
not provided a sufficient reduction, any difference
will be covered by the escrow account. In that way,
objectors are assured that not a penny of their money
will even inadvertently be spent on matters not germane
to the collective bargaining process.
In sum, under the regime established by the Board,
and in place at our union, employees are fully aware of
their Beck rights and have every opportunity to
exercise them in a meaningful manner. The union's Beck
compliance program--for the most part required by law--
has imposed substantial burdens on the union. And we
most emphatically believe that if any modification of
the existing rules is in order, it would be in the
direction of less regulation, and not more.\20\
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\20\ Prepared statement of Mark Schneider, Hearing on the
Assessment of Union Dues, Before the Subcommittee on Employe-Employee
Relations, 104th Cong., 2nd Sess. (April 18, 1996).
---------------------------------------------------------------------------
H.R. 2434 ignores substantive flaws in labor law and proposes
fundamental changes to the law based on dubious anecdotes
To buttress a nonexistent case for the need to protect Beck
rights, the majority has produced anecdotal evidence of the
hardships faced by workers. However, the Republicans have
produced no systemic evidence beyond partisan polling
information for the contention that Beck rights are routinely
violated or difficult to enforce. In fact, there is no evidence
for those kinds of systemic abuses. There is substantial
evidence, however, for the systemic abuse of other provisions
of the National Labor Relations Act. The major thrust of
section 8(a)(3) has nothing to do with agency fees, but
provides that it is ``an unfair labor practice for an employer
by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage
membership in any labor organization. * * *'' Notwithstanding
8(a)(3), it is estimated that 10,000 workers are unlawfully
fired every year for seeking to exercise their right to
organize. In one out of every four organizing campaigns,
workers are unlawfully fired for seeking to exercise
statutorily protected rights. According to a recent survey, 44%
of all workers who are not represented by a union would vote to
join a union tomorrow, but for the fact that doing so may cost
them their jobs.
But the Majority is not just indifferent, they are hostile
to addressing these kinds of systemic abuses of the law. H.R.
2434, was intentionally crafted in a manner that precludes our
ability to even attempt to redress the systemic problems in the
law. Rather than seeking to amend the National Labor Relations
Act and the Railway Labor Act, the statutes that authorize
agency fees in the first instance, H.R. 2434 was deliberately
crafted as a free standing statute in part in order to preclude
amendments that may deal with more substantive problems in the
law.
The Majority's animosity for the rights of workers is also
reflected in the absurd remedies provided under H.R. 2434.
Workers have a right to form and join unions. Where workers
exercise that right, they also are protected from being
required as a condition of employment from having to finance
union activities that are not germane to collective bargaining,
contract administration, or grievance adjustment. The right to
pay less than full union dues, however, is meaningless unless
workers exercise the right to organize. There is no general
obligation under the NLRA requiring employers to inform
employees of their right to form and join unions. Nor does H.R.
2434 provide such a requirement. However, where employees do
act to form or join unions, H.R. 2434 requires employers to
post notices informing employees of their rights to pay less
than full union dues. It is not simply inconsistent to require
that employers post notices informing workers of their right
not to pay less than full union dues, while refusing to require
employers to inform workers of their right to join a union in
the first instance. It is illustrative of a general hostility
toward the right of workers to form and join their own
organizations.
The hostility is even more obvious with respect to another
aspect of the remedies provided under H.R. 2434. Damages are
not available to employees under section 8(a)(3) where an
employer unlawfully fires a worker for seeking to form or join
a union. However, H.R. 2434 provides double damages in
circumstances where a union effects a violation of 8(a)(3) by
requiring an objector to pay full union dues. As has been
previously pointed out, under the LMRDA union members have the
right to determine how much their union dues will be, and under
the NLRA union dues may not be excessive or discriminatory. As
Mark Schneider pointed out in testimony before the
subcommittee:
The discussion over the appropriate procedural rules
to implement Beck is a discussion that in practical
terms is a discussion over extremely small amounts of
money. Union dues in the Machinists Union is something
like $25-$30 each month. The reduction owed a dues
objector is routinely something in the nature of 20% of
that amount--only a small portion of which, I hasten to
add--relates to expenditures for political activity. A
disagreement over the appropriate safeguards that
should be in place to assure the accuracy of the
union's reduction calculation--whether it is properly
19% or 20%, or how to structure an arbitration system
that fairly gives an objector opportunity to claim that
the reduction is properly a higher percentage than
claimed--is literally a dispute over pennies. Without
disparaging in any way the importance of the ongoing
discussion about the implementation of Beck or the
merits of one or the other holdings of the NLRB in
California Saw, I would respectfully suggest that there
are matters within the jurisdiction of the NLRB of far
more critical importance to the workers we represent,
and, for that matter, to the employer community, that
are not getting the attention that Beck compliance has
achieved, and I look forward to the day when these
other critical issues are given the attention they
deserve.\21\
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\21\ Prepared statement of Mark Schneider, Hearing on the
Assessment of Union Dues, Before the Subcommittee on Employer-Employee
Relations, 104th Cong., 2nd Sess. (April 18, 1996).
H.R. 2434 provides damages for financially meaningless,
though philosophically important, improper act of union of
claiming more dues money from an employee than it is entitled
to, or of spending such funds in a manner unrelated to
collective bargaining and inconsistent with the employee's
views. Being unlawfully fired, however, is a financial, as well
as a philosophical, catastrophe for a worker.
The NLRA generally provides ``make whole'' remedies for
employer unfair labor practices. Where an employee has been
unlawfully discharged, an employee is generally entitled to
reinstatement and back wages for the period the employee was
unemployed, minus any wages the employee could have earned
during that period. As evidenced by the number of workers who
are annually discharged in violation of 8(a)(3), existing
remedies do little to deter employer violations. Employers
often contest the unfair labor practice and thereby prolong the
period for which the employee is unlawfully without a job or an
income. The employee is entitled to neither punitive nor
compensatory damages as a result of the harm he or she suffers
as a result of the employer's unlawful action. If an employee
defaults on a car loan or a mortgage payment as a result of the
employer's unlawful discharge, the employee does not receive
additional compensation for that loss. Typically, employees end
up settling such charges without being reinstated and without
even receiving the full compensation to which they are
entitled. Even where employees are reinstated, they are
commonly gone within one year of reinstatement. To content that
a worker should be entitled to damages where a union has
misused minimal amounts of a worker's money, but should not be
entitled to damages where an employer has unlawfully abridged
the ability of that worker to earn a livelihood demonstrates a
staggering animosity for the rights and welfare of working
Americans. Yet, the is exactly the circumstance the majority
would seek to create by enacting H.R. 2434.
The blatant unfairness of H.R. 2434 is evident in other
ways as well. While 8(b)(2) provides it is an unfair labor
practice for a union to cause an employer to violate 8(a)(3),
8(a)(3), itself, provides that it is an unfair labor practice
for an employer to discriminate against an employee for
nonmembership in a labor organization where that employee has
otherwise tendered the dues and fees required pursuant the dues
and fees required pursuant to an agency fee agreement. By
contrast, H.R. 2434 provides that it unlawful for a labor
organization to accept dues and fees pursuant to an agency fee
agreement without prior approval of the employee. Putting aside
the significant issue of prior approval, under current law an
employer who unlawfully administers an agency fee provision is
as equally liable as a union that unlawfully administers an
agency fee provision. Under H.R. 2434, however, where an
employer unlawfully administers an agency fee provision and the
union does no more than unwittingly accept the money the
employer has unlawfully deducted from the worker, it is the
union and only the union that is liable for damages, while the
employer is only liable for the ``make whole'' remedies of
current law.
H.R. 2434 imposes prohibitively high costs of compliance on unions
If the Worker Paycheck Fairness act is enacted, unions
would be required to collect 16.3 million signatures from
workers. In order to obtain the 16.3 million individual
authorizations, the cost will be approximately $1 per person,
for a response and retrieval rate of significantly less than
100 percent. Add to that 2.7 million hours of effort, and the
value of that time calculated at $15.05, the average wage of a
union employee, then the cost of collecting signatures is $40.6
million plus the estimated $16.3 million, to prepare
authorization forms and explanatory materials, distribute them,
and follow-up on signatures.
This bill does not define reporting requirements, but
presumably unions would have to delineate for their members
what activities and expenses were involved in political
expenditures. This bookkeeping would impose new administrative
burdens to most of the 33,800 or more labor bodies. Keep in
mind that many locals are very small and the majority have no
paid staff and no computerized records or accounts, developing
new and sophisticated reporting systems is neither easy nor
inexpensive. A leading accountant with significant experience
working with trade unions estimates that setting up such a
system would cost a minimum of $2,000 in professional
accounting time, not to speak of the time necessary for union
officials to work with the systems. Many locals do not have the
funds to pay these accounting costs. Estimated start-up costs
to comply with this provision of the proposed legislation would
be approximately $3.4 million, conservatively. If the 33,800
labor bodies needed to develop new accounting systems, then
start-up costs could run as high as $6.8 million, meaning that
between $13.2 million and $26.5 million would be spent each
year maintaining the systems and generating reports.
An undertaking of this magnitude is mammoth, especially
where a local has members in multiple locations. Monumental
effort is required at each stage of the process--notice,
distribution, solicitation, response, and follow-up. The new
administrative burdens and requirements would cost nearly as
much as $90 million initially and $27 million every year
thereafter.
The requirement for national banks and corporations to gain
similar authorizing signatures is not significant, given that
``stockholders or employees'' rarely pay dues, initiation fees,
or other payment as a condition of employment.'' The
requirement for labor unions clearly is significant, since dues
are the way in which these organizations fund their existence.
H.R. 2434 is an invitation for further litigation
As interpreted by the Supreme Court, the federal labor law
``does not permit a union, over the objections of nonmembers,
to expend compelled agency fees on political causes.''
Communication Workers v. Beck, 487 U.S. 735, 745 (1988), citing
Machinist v. Street, 367 U.S. 740 (1961). Recognizing that the
``the majority * * * has an interest in stating its views
without being silenced by the dissenter,'' the Court has taken
care to articulate a rule that attain[s] the appropriate
reconciliation between majority and dissenting interests in the
area of political expression'' and ``protect[s] both interests
to the maximum extent possible without undue impingement of one
on the other.'' \22\
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\22\ Machinists v. Street, 367 U.S. at 773.
---------------------------------------------------------------------------
The proponents of H.R. 2434 have expressed their
dissatisfaction with the ``reconciliation between majority and
dissenting interests'' struck by the Supreme Court. Consistent
with this position, the bill would overturn each component of
the rule articulated by the Court to the obvious end of
inflicting ``undue impingement'' upon the majority's right of
free association and expression.
Where the Supreme Court has stated that ``dissent is not to
be presumed--it must be affirmatively made known to the union
by the dissenting employee,'' Street, 367 U.S. at 774, the
union they have chosen to represent them before that union can
accept normal dues. There the Supreme Court expressly limits
the right of dissent to ``nonmembers'', Beck, 487 U.S. at 745,
H.R. 2434 bars unions from accepting normal dues payments from
even voluntary members without having first received from them
statements of agreement with the union's political positions.
And where the Supreme Court states that the dissenters'
``grievance stems from the spending of their funds for purposes
not authorized by the Act in the face of their objection not
from * * * the mere collection of funds,'' Street, 367 U.S. at
771, H.R. 2434 bars unions from collecting normal membership
dues from employees who have not signed special forms stating
their agreement with the union's political positions.
The rights of employees with respect to the use of their
contractually required payments to unions have been forged over
years of litigation. In one stroke, H.R. 2434 would completely
unsettle this area of the law, leaving unions, employers, and
most especially employees completely unsure of where they
stand. As a general rule, caution should be exercised in making
a drastic change in settled legal principles, if for no other
reason, than to avoid the flood of litigation that inevitably
follows such changes. But in the labor relations context, where
uncertainty not only leads to litigation but it undermines
industrial stability and employment security, legislative
action upsetting established rights and arrangements is seldom
in order.
The problems that H.R. 2434 claims to address are
fictitious. The remedies imposed by H.R. 2434 are as
unreasonable, unwarranted, and unfair. The protections afforded
those represented by unions with regard to the political
activities of the union far exceed those afforded to the
members of any other organization. The assertion that employees
may be required to underwrite union political activity or that
current law condones or in any way coddles union efforts to
coerce employees into underwriting union political activity is
a gross canard. Neither 8(a)(3) nor 2, Eleventh serves as any
justification for imposing different rules upon the political
participation of unions than those generally applicable to all
other organizations.\23\
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\23\ The rights and protections afforded under section 2, Eleventh
of the Railway Labor Act are not administered by an agency but are
directly enforced by the courts. It has been unlawful since 1961 for a
union subject to the RLA to require an employee as a condition of
employment to underwrite any union costs that are not associated with
the costs of negotiating and administering collective agreements and
adjusting and settling disputes. (see Machinists v. Street, 376 U.S.
740 (1961). Further, until controversy concerning 8(a)(3) arose in the
last Congress, no serious need has ever been felt to codify the Street
decision.
---------------------------------------------------------------------------
The Majority states that ``Unions, by a grant of power from
the federal government, can force employees to pay dues to the
union as a condition of keeping their jobs; corporations cannot
force individuals to invest in the nor can other membership
organizations force individuals to join and pay dues.'' To the
extent that the majority is implying that a union may force any
employee to underwrite any activity that is not related to
collective bargaining, contract administration, or grievance
adjustment, they are being disingenuous. However, the
contention that other organizations cannot or do not
effectively coerce members to underwrite their political
activities is equally inaccurate. Both union and nonunion
employees own substantial amounts of corporate stock through
employee pension plans, profit sharing plans, 401(k) plans, and
other forms of retirement savings plans. Most employees have no
voice in how their money is invested and no knowledge of what
stocks are owned by their retirement plans. Nevertheless,
corporations regularly and routinely expend millions of dollars
more than unions on political activities every year, at the
expense of the return workers might otherwise receive for the
pension investments, frequently for purposes that are
antithetical to the interests of workers, without seeking the
prior approval of anyone.
The money that employers and employer organizations are
spending, for example, to dissuade the Congress from regulating
health maintenance organizations, to diminish protections under
the Occupational Safety and Health Act, or to prevent the
minimum wage from being increased is money that was directly
earned by the efforts of workers. It is money that otherwise
may have been used to increase the wages and benefits of
workers. It is money that is instead being spent for the
explicit purpose of preventing wages and benefits from being
increased. It is money that does not belong to corporate
managers. And it is money that is spent without any input from
the workers. To contend that such workers have right to find
another job is not a realistic alternative for most workers,
does not ensure that the worker will not run into the same
problem at the next job, and is an alternative, unrealistic as
it may be, that is equally applicable to an employee who is
subject to an agency fee provision.
H.R. 2434 imposes onerous obligations on the political participation of
unions that are required of no other institution
The truth of the matter is that union members have far more
voice in determining the political activities of their union,
both legally and practically, than shareholders have of
determining how their money is spent for political purposes by
corporate managers. Workers have voluntarily joined the union,
in part, for the express purpose of engaging collectively in
political activity. A shareholder typically buys stock solely
for the purpose of the return the investment will produce. Yet,
virtually every corporation regularly and routinely spends
shareholder money to finance the expression of political views
with which the shareholder may or may not agree. A small
businessman may join the Chamber of Commerce for a variety of
benefits, none of which has anything to do with the Chamber's
political activities. However, that does not prevent the
Chamber from spending a portion of the dues collected from that
small business person for political purposes with which the
business person does not agree.
Further, the money spent by corporations on political
activity vastly exceeds anything spent by unions. According to
information compiled by the Federal Election Commission and the
Independent Center for Responsive Politics, in 1998,
corporations made $166.5 million in hard money contributions to
federal candidates and political parties, compared to $50.2
million from labor organizations. Business outspent labor by a
ratio of 3.1 to 1. The ratio for soft money contributions was
even more one-sided, 16.3 to 1, corporations having contributed
$167.2 million compared to $10.3 million from labor. Businesses
accounted for 87% of all soft money contributions to Democrats
and 96% of all soft money contributions to Republicans over the
period of 1995 and 1996. Over the same period, labor accounted
for 11% of Democratic soft money contributions and 1% of
Republican soft money contributions. In total money, businesses
spent $203.5 million in soft money contributions in 1996,
compared to the slightly less than $9.5 million spent by labor,
a ratio of 21.4 to 1. And this is but the tip of the iceburg.
Including trade association fees, so called public interest
advertising, independent expenditures, and direct lobbying
expenses, corporations spend hundreds of millions, perhaps
billions, of other people's dollars for the purpose of engaging
in political activity. So much for the Republican concern that
``all men and women should have a right to make individual and
informed choices about the political, social, or charitable
causes they support.'' \24\
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\24\ H.R. 2434, Section 2, paragraph (3).
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Notwithstanding the limited financial interests that
individual workers have in H.R. 2434, the harm that H.R. 2434
would visit upon unions and upon the rights of workers, as
compared to any other segment of society, are substantial.
Unions operate on the principal that it is the right of the
majority to decide the duties of membership, and that those who
want the privileges of membership must accept the
responsibilities that come with it. Political parties,
churches, business associations, girlscout troops and all other
voluntary associations operate on the same principle. For
example, it is typical for those who wish to select a
Republican candidate for political office to be required to be
members of the Republican Party.
The Supreme Court has long recognized that an organization
has the right to ``determin[e] * * * the boundaries of its own
association, and of the structure which best allows it to
pursue it political goals, is protected by the Constitution.''
\25\ And ``any interference with the freedom of [the
organization] is simultaneously an interference with the
freedom of its adherents.'' \26\
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\25\ Tashijan v. Republican Party of Connecticut, 479 U.S. 208, 224
(1986).
\26\ Democratic Party of the United States v. Wisconsin 450 U.S.
107, 122 (1981).
---------------------------------------------------------------------------
Beck incorporates these fundamental principles of freedom
of association while safeguarding the right of dissidents to
withdraw from the group without suffering adverse employment
consequences and without any obligation to pay for a union's
political or ideological activities. However, to force a union
to allow dissidents who withdraw from membership to retain the
right participate in membership decisions would turn Beck--and
the First Amendment--on their heads.
If freedom of association is to have any meaning, the
members of the association must have the right to decide how
best to pursue their common interest and common mission. To
prevent union members from deciding that their union will
engage in political activity, and that those who choose to join
the union will support that activity through a portion of their
dues, is to strike at the heart of union members' rights of
association. What the Supreme Court has said in the political
party context is equally apt here: ``these proposal would
`limit [unions'] associational opportunities at the critical
juncture at which the appeal to common principles may be
translated into concerted action and hence to political power
in the community.'' \27\
---------------------------------------------------------------------------
\27\ Tashjian, supra, 479 U.S. at 216.
---------------------------------------------------------------------------
Indeed, that is precisely the point. To prohibit unions
from using dues money to press for the enactment of legislation
or the election of candidates sympathetic to working families--
or to require each member every year to sign a written
agreement authorizing such activities would effectively silence
the only voice working families have in our society.
For all the talk bout union expenditures in the last
election, the fact of the matter is that corporate interests
significantly outspent union interests. We need a more level
playing field for working people in politics, not one that is
more skewed in favor of corporate interests. And, we will do
everything we can to resist these blatant attempts to punish
the labor movement for having had the temerity to stand up for
the men and women they represent, and to protect the right of
their members to participate on a full and equal basis in the
political decision making process in this country.
William L. Clay.
Dale E. Kildee.
Donald M. Payne.
Robert E. Andrews.
Robert C. Scott.
Carlos Romero-Barcelo
John F. Tierney.
Loretta Sanchez.
Dennis J. Kucinich.
Rush Holt.
George Miller.
Major R. Owens.
Tim Roemer.
Lynn Woolsey.
Chaka Fattah.
Carolyn McCarthy.
Ron Kind.
Harold E. Ford, Jr.
David Wu.