Jan 04, 2013 - 5:06pm

Two-Pronged NLRB Decision Emasculates Workers’ Beck Rights ("Kent Hospital" Decision)


Senior Vice President, Employment Policy Division

(1/4/2013)

On December 14, the National Labor Relations Board (NLRB or Board) issued a decision in the Kent Hospital case.  In short, this decision effectively undermines the right of objecting workers to avoid paying for a union’s lobbying activities, while at the same time making it more difficult for those workers to determine if unions are extracting money from them improperly.

The case arose when workers who opted not to join a union at a Rhode Island hospital objected to the use of the fees they paid to the United Nurses and Allied Professionals (UNAP) union.  Since Rhode Island is a non right-to-work state, unions can compel payments even from non-members.  Under the Supreme Court’s Beck decision, however, unions must refund so-called “non-chargeable” expenses to non-members and provide documentation so that those workers know if the fees charged by a union are legal.  For example, unions cannot charge non-members for political expenses, among categories of spending.

One means of determining if non-members are being refunded the proper amount is the provision by the union of financial data that has been independently audited.  In Kent Hospital, workers complained that while the union had given them financial information, it had not provided them with the independent auditor’s verification letter, and that as a result, they had no way of knowing—beyond the union’s assurances—that an audit had taken place and found satisfactory results.  In its ruling, the Board found this complaint meritless, and ruled that unions have no obligation to provide such a letter.   In justifying this decision, the Board claimed that it “endeavored to achieve ‘a careful balance between the competing interests involved,’ rather than promote the unqualified interests of the individual or the union.” 

To anyone familiar with the NLRB’s recent handiwork, this newfound dedication to a “careful balance” between competing interests is more than a bit disingenuous. And in any event, giving workers access to more information about how their money is being spent seems unlikely to upset this balance.  As (now former) Member Brian Hayes noted in his dissent, a union “would incur no additional burden” by providing to workers an audit letter already in its possession. 

Kent Hospital, however, is about far more than providing workers with information.  The Board went on to give unions virtual carte blanche to spend non-members’ money on lobbying activity, despite numerous court decisions narrowly restricting such expenditures.

In previous cases, the Board and the Supreme Court have ruled that certain litigation expenses are chargeable to non-members.  Lobbying expenses, however, have been found to be largely non-chargeable.  The Democrats on the Board circumvent this inconvenient fact by writing that “Lobbying, like litigation, is a means rather than an end—a strategic activity that a union undertakes to advance the interests of its members. … Legislative proposals involving core employee concerns such as wages, hours and working conditions all clearly raise issues that relate to a unions most essential representative functions.”

Going further, the Board determined that lobbying expenses could be chargeable even if they lacked any relationship to the workplace represented by a particular union local.  The Board reached this conclusion by arguing that union locals may contribute to lobbying by their parent union or other locals with the expectation that they may receive similar assistance in the future.  Whether or not such assistance is ever provided is not a matter with which the Board concerned itself, although workers forced to pay for such expenditures may take a keener interest.

These vague new standards will allow unions to classify almost any lobbying activity as chargeable to non-members.  Unions will face little difficulty in establishing at least some nexus between a legislative issue and “core” employee concerns such as wages, hours or working conditions. 

Unions have always objected to the Beck decision, and now it seems that the NLRB has given them the means to at least partially undermine it.  Will the Board next attempt to require non-members to pay for a union’s political expenditures?  Under the NLRB’s logic, legislative proposals deal with core employee concerns.  And who passes legislative proposals but legislators? 

Such a course of action would seem unlikely, given court precedent and established law.  Then again, these sorts of legal niceties are no obstacle to the current Board majority.
 

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About the Author

Glenn Spencer Headshot
Senior Vice President, Employment Policy Division

Glenn Spencer is senior vice president of the Employment Policy division at the U.S. Chamber of Commerce.