NLRB Decisions Point To Potentially Weaker Beck Rights For Employee Objectors

by Franczek Radelet P.C.

Recently, the National Labor Relations Board (NLRB) took another step toward expanding the ability of unions to impose requirements and costs on nonmember objectors even as it found that the Communications Workers of America (CWA) had violated the National Labor Relations Act by requiring so-called “Beck objectors” to assert their objections annually.  When coupled with another decision on chargeable lobbying expenses earlier this year, the NLRB appears to be quietly signaling a retreat from broader protections for nonmember objectors.

In its 1988 Communications Workers of America v. Beck decision, the Supreme Court held that when operating under a union security agreement, unions may only collect from objecting nonmembers those fees and dues necessary for collective bargaining, contract administration, and grievance adjustment.  The Court generally outlined very limited circumstances where other costs, such as lobbying expenses, could be charged to nonmember objectors.  Following Beck, unions generally limited lobbying expenses paid by objectors, but often required objecting employees to renew those objections each year as a matter of course.  However, in 2010, a divided NLRB determined that this practice was unlawful, unless the union could show that it was either de minimus or based on a legitimate justification.

In February, the NLRB chipped away at the first of those Beck protections in its Kent Hospital decision, over the dissent of then-Member Hayes. In that case, the objector argued that, under Beck, private sector unions could not charge for lobbying expenses. Conversely, the union contended that any lobbying expenses germane to its broad representational functions were chargeable.  Adopting the union’s position, the Board found that unions could show a “rebuttable presumption” that the expenses were germane when  “a direct, positive relationship between the union’s representational duties and the union’s goals in pursuing legislative or other action” existed, including, for example, lobbying related to minimum wage issues.  A “rebuttable presumption” could impose a significant burden on objectors seeking to challenge union levies.

On June 10, the Board took another step by opening the door to wider “legitimate justifications” for annual Beck objection renewals.  The CWA argued that it had a legitimate interest in addressing dissent among represented employees, and therefore its annual Beck objection renewals were justified.  Although the Board rejected the CWA’s purported justification because the CWA was not actually using the renewal data to address dissent, the Board agreed that the CWA’s interest was legitimate.  Thus, the decision leaves the question open of whether a union may require annual renewal of Beck objections if it shows some evidence that it uses the data to address employee dissent.

The Board’s two decisions create an incentive for unions to test the limits of the Board’s narrowing of employees’ Beck rights.  Despite the Supreme Court’s seemingly broad decision, the Board’s actions on the Beck rights front bears watching in the months ahead.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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