NLRB Targets Union Lobbying

Top enforcement memo aims at holding unions accountable for charging dissenters for lobbying fees

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The Trump administration wants to hold labor organizations accountable for forcing dissenting workers to pay for union lobbying.

National Labor Relations Board General Counsel Peter Robb told agency regulators that they should pay police unions for improperly charging agency fee payers for political activities. Agency fee workers pay for and receive union representation, but are supposed to be exempt from financing union politics—an employee right established by the Supreme Court's 1988 Beck decision. Robb said the agency should place the burden of proof on union representatives to show they are properly charging dissenters for agency fee payments.

"The union has the burden of justifying the propriety of its expense allocations," Robb said in the memo. "We will no longer require agency fee objectors to explain why a particular expenditure is nonchargeable and to provide evidence or promising leads to support that contention."

Unions are obligated under Beck to provide a breakdown of expenditures to justify how much partial dues objectors are charged for union representation. The Board, which oversees union elections and workplace disputes, had previously required workers to make factual allegations in their complaints, despite the fact that they often do not have full accounts of the union's books and budgets outside of what information is given to them by the union. Regional NLRB staffers will have a better understanding of what unions are and are not allowed to charge and can help better enforce their rights.

"That approach to case handling improperly forecloses Beck objectors from utilizing the Board as a viable forum for their chargability challenges and is inconsistent with the decisions placing the burden of proving union expenses are chargeable on the union," Robb said. "Greater scrutiny of union expenditures at the investigation stage, without the objecting employee having to first identify and present evidence regarding questionable expenditures, is warranted to preserve employees' right to adjudicate their Beck claims before the Board."

Labor watchdogs said the memo will fill a gaping hole in enforcing workers rights within the NLRB. Patrick Semmens, spokesman of the National Right to Work Foundation, said the agency had "historically shirked its duty to enforce the rights of nonmembers." The group has won numerous lawsuits and labor complaints against unions that have improperly disclosed its financials to disguise political activities. He added that these cases are that much more difficult when the charging party is forced to rely on disclosures from the union alleged to have committed financial wrongdoing in the first place.

"Union bosses not only decide how to spend workers' dues money but also are the ones with full access to the financial numbers, so the legal burden should be on them to prove that they are not forcing workers to pay one cent more than is legally permitted," Semmens said.

The memo came in the wake of the NLRB's March decision in the United Nurses & Allied Professionals case, in which a Rhode Island nurse sued her union for spending her agency fee money on lobbying. Union partisans, particularly in the public sector, have said that legislative lobbying that affects the day-to-day lives of workers should fall under representational services, rather than political activities. The board rejected this justification in a 3-1 decision.

"The Board majority held that lobbying activity, although sometimes relating to terms of employment or incidentally affecting collective bargaining, is not part of the union's representational function, and therefore lobbying expenses are not chargeable to Beck objectors," the agency said in a release following the decision. "A union violates its duty of fair representation if it charges agency fees that include expenses other than those necessary to perform its statutory representative functions."

The ruling could deal a significant blow to union finances. Labor unions spent more than $2 billion on the 2018 midterm elections with much of that money falling under the classification of political expenses and lobbying. An analysis from the National Institute for Labor Relations Research found that tens of millions of dollars that unions classified as grants or gifts went to political advocacy groups—money that was paid in part by agency fees from dissenters.

Maxford Nelsen, director of labor policy for the pro-free market Freedom Foundation, said that labor organizations familiar with NLRB enforcement operations can take advantage of the fact that the average worker likely does not have the time or the resources available to professional researchers to dig up shady accounting tricks. He said the new memo would help to avoid temptation of misspending objector dues and ensure that fee payers's money is properly spent.

"Often, employees simply do not have access to the information necessary to verify their union is charging them appropriately," Nelsen said. "This is a positive step that will help ensure unions remain circumspect in their accounting and remove the temptation to overcharge nonmembers."

Glenn Taubman, the Right to Work Legal Defense Foundation attorney in the United Nurses case, said that the NLRB's decision represents a welcome contrast to past enforcement of dissenters' rights. The memo will ensure that the agency enforces worker protections from labor representatives, rather than focusing solely on their employers. The agency in the past has been too willing to focus on its own ideological biases instead of the real lives of workers, according to Taubman.

"General Counsel Robb is allowing employees to finally hold union officials to their burden of proof, and ensure that employees do not fund union officials' far left political agenda," Taubman said.

The board's new policy also has established new transparency measures to protect workers. Unions going forward will now have to provide independent third party accounts of their expenses to requesting members. Previous rules only required unions to disclose that they had been "appropriately audited" without details of what organization performed the audit.