CWA v Beck Issue Today we must decide

CWA v. Beck • Issue – Today we must decide whether (Section 8(a)(3)) permits a union over the objections of dues-paying nonmember employees, to expend funds so collected on activities unrelated to collective bargaining, contract administration, or grievance adjustment, and, if so, whether such expenditures violate the union's duty of fair representation or the objecting employees' First Amendment rights 1

Procedural/Jurisdictional Issues • Board preemption of 8(a)(3) charge under Garmon not applicable here where – Courts have jurisdiction over DFR and First amendment claims – Union has based its defense on these claims and on 8(a)(3) • UFLP claim collateral to claims courts may address – DFR – First amendment 2

Section 8(a)(3) • Authorizes union shop provisions requiring “membership” in the union as a condition of employment • Membership is “financial core” – Only payments (dues and fees) required – not allegiance 3

Funds Collected Under Union Shop Provisions • Same as RLA (Street case) • Limited to collective bargaining, etc. • May not be used for political purposes, social purposes, etc. • Rationale for union shop authorization is “free rider” problem – Anything unrelated to “free rider” outside of permissible scope of union shop under 8(a)(3) 4

• Eleventh. Union security agreements; check-off • . . . any carrier or carriers as defined in this chapter and a labor organization or labor organizations duly designated and authorized to represent employees in accordance with the requirements of this chapter shall be permitted(a) to make agreements, requiring, as a condition of continued employment, that within sixty days following the beginning of such employment, or the effective date of such agreements, whichever is the later, all employees shall become members of the labor organization representing their craft or class: Provided, That no such agreement shall require such condition of employment with respect to employees to whom membership is not available upon the same terms and conditions as are generally applicable to any other member or with respect to employees to whom membership was denied or terminated for any reason other than the failure of the employee to tender the periodic dues, initiation fees, and as assessments (not including fines and penalties) uniformly required as a condition of acquiring or retaining membership. 5

• (W)e construe 2, Eleventh as not vesting the unions with unlimited power to spend exacted money. . We have before us only the question whether the power is restricted to the extent of denying the unions the right, over the employee's objection, to use his money to support political causes which he opposes. Its use to support candidates for public office, and advance political programs, is not a use which helps defray the expenses of the negotiation or administration of collective agreements, or the expenses entailed in the adjustment of grievances and disputes. In other words, it is a use which falls clearly outside the reasons advanced by the unions and accepted by Congress why authority to make union-shop agreements was justified. On the other hand, it is equally clear that it is a use to support activities within the area of dissenters' interests which Congress enacted the proviso to protect. We give 2, Eleventh the construction which achieves both congressional purposes when we hold, as we do, that 2, Eleventh is to be construed to deny the unions, over an employee's objection, the power to use his exacted funds to support political causes which he opposes. (Int’l Assoc. of Machinsts v. Street, U. S. Sup. Ct. , 1961, 367 U. S. 740, 768 -769 6

Holding in Beck (Brennan w/Rehnquist, While, Marshall, Stevens) • “We conclude that 8(a)(3), like its statutory equivalent, 2, Eleventh of the RLA, authorizes the exaction of only those fees and dues necessary to ‘performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues. ’” • What is incorporated in the definition of “duties of an exclusive representative of the employees in dealing with the employer on labor-management issues? ” 7

What is a Collective Bargaining Expense? • Organizing expenses may be included in collective bargaining expenses (UFCW Local 1036 v. NLRB, CA 9, 2002, Docket No. 99 -71317) – Deference to Board decision and expertise on industrial relations matters – organizing done in same “competitive market” – TCE of nonunion competitor’s employees germane to unionized ees. 8

Can Notification of Beck Rights Be Required by Exec. Order? • A presidential executive order dated April 18, 2001 which requires federal contractors to post a notice informing employees of their right to refuse to pay dues and fees greater than those necessary for bargaining is enjoined (UAW-Employment and Training Corp v. Chao, January 2, 2002, D. C. , Civ. Action 01 cv 00950) – Inconsistent with, and preempted by, NLRA 9

Dissent (with partial concurrence) Blackmun w/ O’Connor, Scalia • Nothing in statute or legislative history that suggests that Congress attempting to limit how dues collected through a union shop could be expended – Congress concerned only about • “closed shop” • Arbitrary and discriminatory denials of membership in the union 10

Note Principles of Statutory Interpretation • Majority – Statutory purpose • Prevention of free riding – Statutory Consistency • With RLA • Dissent – Language • Not addressed in statute – Legislative History • Not discussed 11