89–006

106TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 106–968

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

2

1 487 U.S. 735 (1988).

‘‘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.

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, PresiVerDate 11-MAY-2000 19:17 Oct 13, 2000 Jkt 089006 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 E:\HR\OC\HR968.XXX pfrm02 PsN: HR968
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dent, 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,

4

2 Id.

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, Beck2 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.

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 authorVerDate 11-MAY-2000 19:17 Oct 13, 2000 Jkt 089006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\HR968.XXX pfrm02 PsN: HR968
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3 487 U.S. 735, at 762 (1988).

ization 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. Beck3 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.

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 conVerDate 11-MAY-2000 19:17 Oct 13, 2000 Jkt 089006 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\HR968.XXX pfrm02 PsN: HR968
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4 Hearing on Mandatory Assessment of Union Dues, Before the Subcommittee on EmployerEmployee Relations, 104th Cong., 2nd Sess., at 12 (April 18, 1996) (Serial No. 104–66). 5Field 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.

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). 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). 10Field 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).

sciousness of industrial relations—I have seen no evidence to sustain that proposition, however.’’ 4

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

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

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%

7

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). 13The 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 EmployerEmployee 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)). 16 Hearing on Mandatory Assessment of Union Dues, Before the Subcommittee on EmployerEmployee Relations, 104th Cong., 2nd Sess., at 26 (April 18, 1996) (Serial No. 104–66).

of union members know that they could object to the use of union

dues for non-collective bargaining purposes.

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

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

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

8

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). 18Field 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). 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). 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). 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).

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

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.

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

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

9

22 Hearing on Mandatory Assessment of Union Dues, Before the Subcommittee on EmployerEmployee Relations, 104th Cong., 2nd Sess., at 29 (April 18, 1996) (Serial No. 104–66). 23See 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). 24Hearing on Mandatory Assessment of Union Dues, Before the Subcommittee on EmployerEmployee 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 EmployerEmployee Relations, 104th Cong., 2nd Sess., at 54 (April 18, 1996)(Serial No. 104–66). 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).

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 wellbeing.’’ 22

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

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

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

10

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 EmployerEmployee Relations, 104th Cong., 2nd Sess., at 36 (April 18, 1996) (Serial No. 104–66). 29Field 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).

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

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

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.

11

30 Hearing on Mandatory Assessment of Union Dues, Before the Subcommittee on EmployerEmployee Relations, 104th Cong., 2nd Sess., at 54–55 (April 18, 1996) (Serial No. 104–66). 31 29 U.S.C. Section 158(a)(3). 32 45 U.S.C. Section 152, Eleventh.

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 fouryear 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

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 noncollective 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

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

12

33 Hearing on Mandatory Assessment of Union Dues, Before the Subcommittee on EmployerEmployee Relations, 104th Cong., 2nd Sess., at 362 (April 18, 1996) (Serial No. 104–66). 34 487 U.S. 735, 762 (1988).

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

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

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

13

35See 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). 36The 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).

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

14

37Miller v. Air Line Pilots Association, 108 F.3d 1415, at 1422 (D.C.Cir. 1997). 38 466 U.S. 435 (1984) 39The 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. 40This 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.

Supreme Court, have been particularly chary of treating as germane union expenditures that touch the political world.’’ 37

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

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 organizations40 or

social causes and union-sponsored social or cultural events.41

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.

15

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). 43This 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). 44Ferriso 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).

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

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.

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

16

45 Executive Order 12800 (April 13, 1992). 46 Executive Order 12836 (February 1, 1993). 47 Hearing on Mandatory Assessment of Union Dues, Before the Subcommittee on EmployerEmployee 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. 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.

Order issued by President Bush in 1992 45 and later rescinded by

President Clinton.46

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.

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.

17

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. 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).

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.

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

18

57 Id. 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.

more easily provide extensive and useful information to dues payers.57

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.

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 intimiVerDate 11-MAY-2000 19:17 Oct 13, 2000 Jkt 089006 PO 00000 Frm 00018 Fmt 6659 Sfmt 6602 E:\HR\OC\HR968.XXX pfrm02 PsN: HR968
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60 946 F. 2d 283 (4th Cir. 1991).

dating 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.

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 opVerDate 11-MAY-2000 19:17 Oct 13, 2000 Jkt 089006 PO 00000 Frm 00019 Fmt 6659 Sfmt 6602 E:\HR\OC\HR968.XXX pfrm02 PsN: HR968
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61 731 F.Supp 192, at 199 (D. Md. 1989).

posed 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.

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 freestanding 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

21

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

22

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.

23

24

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

25

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

26

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

27

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.

28

62Texas & 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).

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.

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—

29

(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.

* * * * * * *

(30)

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

31

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 forcedVerDate 11-MAY-2000 19:17 Oct 13, 2000 Jkt 089006 PO 00000 Frm 00031 Fmt 6604 Sfmt 6602 E:\HR\OC\HR968.XXX pfrm02 PsN: HR968
32

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 GOPapproved system of regulation—but to end it!’’

33

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.

(34)

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

35

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

36

1 29 U.S.C 158(b)(5).

2 29 U.S.C 431(a).

3 29 U.S.C 431(b).

4 29 U.S.C 431(c).

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.

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:

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

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

37

5Machinists v. Street, 367 U.S. 740, 814–815 (1916) (dissenting opinion). 6 Id. at 800.

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:

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

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

38

7Prepared statement of James B. Coppess, Hearing on Mandatory Union Dues, Before the

Subcommittee on Employer-Employee Relations, 105th Cong., 1st Sess. (March 18, 1997). 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).

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

[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

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.’’

39

9Labor Board v. General Motors, 373 U.S. 734, 743 (1963).

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

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)

40

10 Communication Workers v. Beck, 487 U.S. 735, 745 (1988). 11 Id., at 745–747 (citations omitted). 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.

places on the negotiation of and enforcement of union-security

agreements. * * *’’ 10 However:

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

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.

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

41

13 Id., at 768–770 (citations omitted). 14 Id., at 745. 15 Id. 16 320 NLRB No. 11 (1995).

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

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.

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. FiVerDate 11-MAY-2000 19:17 Oct 13, 2000 Jkt 089006 PO 00000 Frm 00041 Fmt 6604 Sfmt 6602 E:\HR\OC\HR968.XXX pfrm02 PsN: HR968
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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). 18 NLRB General Counsel Memorandum, GC–88–14 (Nov. 15, 1988). 19 CA DC, No. 96–1321 (September 23, 1997).

nally, 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.

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

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.

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.

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

43

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 proVerDate 11-MAY-2000 19:17 Oct 13, 2000 Jkt 089006 PO 00000 Frm 00043 Fmt 6604 Sfmt 6602 E:\HR\OC\HR968.XXX pfrm02 PsN: HR968
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20Prepared 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).

gram—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

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 emVerDate 11-MAY-2000 19:17 Oct 13, 2000 Jkt 089006 PO 00000 Frm 00044 Fmt 6604 Sfmt 6602 E:\HR\OC\HR968.XXX pfrm02 PsN: HR968
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21Prepared 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).

ployers 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

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,

46

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.

47

22Machinists v. Street, 367 U.S. at 773.

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

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

48

23The 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 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

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 emVerDate 11-MAY-2000 19:17 Oct 13, 2000 Jkt 089006 PO 00000 Frm 00048 Fmt 6604 Sfmt 6602 E:\HR\OC\HR968.XXX pfrm02 PsN: HR968
49

ployees 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

50

24 H.R. 2434, Section 2, paragraph (3). 25Tashijan v. Republican Party of Connecticut, 479 U.S. 208, 224 (1986). 26Democratic Party of the United States v. Wisconsin 450 U.S. 107, 122 (1981).

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

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

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

51

27Tashjian, supra, 479 U.S. at 216.

translated into concerted action and hence to political power in the

community.’’ 27

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.

Æ