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STATEMENT
OF W. JAMES YOUNG House Committee on
Education and the Workforce Chairman Norwood and Members of the Committee: Thank you for the opportunity to participate in these important hearings. My name is William James Young. I am a Staff Attorney with the National Right to Work Legal Defense Foundation, in Springfield, Virginia. Since the Foundation was founded in 1968, it has provided free legal aid to the plaintiffs in almost every case litigated concerning the rights of workers not to subsidize union political and other nonbargaining activities. The most famous of these cases is Communications Workers of America v. Beck. I have worked as a Foundation staff attorney for twelve years today. In that time, I have provided free legal representation to tens of thousands of individual employees nationwide, seeking through litigation to vindicate their fundamental constitutional and civil rights against compulsory unionism abuses perpetrated by both unions and employers. In addition to representing public sector employees in a wide variety of federal civil rights cases dealing with the abuses of compulsory unionism, I have spent a considerable portion of my professional life litigating cases under the National Labor Relations Act. I commend you for investigating the NLRB’s inadequate stewardship of this country’s labor laws. The failure to implement Harry Beck’s victory in the United States Supreme Court is a serious problem. Individual workers throughout America are forced—by virtue of a unique privilege granted to unions by Congress — to contribute their hard-earned dollars to political and ideological causes they oppose. And when they seek to exercise the rights that they have won under the Supreme Court decisions — to stop the misuse of their money for partisan political and ideological activities and other nonrepresentational activities – they are often stymied by both unions and the National Labor Relations Board itself. Let me make clear that I am not talking about contributions to candidates by union political action committees, which are so often referenced by union representatives trying to change the subject from forced union dues for politics. I am talking about union dues and fees, collected from workers under threat of loss of job—a threat authorized by current federal labor law. These are compulsory dues and fees that under federal election law can lawfully be used for registration and get-out-the-vote drives, candidate-support among union members and their families, administration of union political action committees, and issue advocacy. In testimony before a House committee in 1996, Leo Troy, Rutgers University Professor of Economics, conservatively estimated that these in-kind union political expenditures amount to between 300 to 500 million dollars in a presidential election year. That, of course, is in addition to the uncountable millions, perhaps billions, more that labor organizations spend on state and local elections and lobbying at all levels of government. Under the National Labor Relations and Railway Labor Acts ("NLRA" and "RLA"), employees who never requested union representation must accept as their monopoly bargaining agent the union that the majority of the employees in their bargaining unit selects. Then, if their employer and that labor union agree, the law forces these employees to pay dues or fees for that unwanted representation or lose their jobs.The evil inherent in compelling objecting employees to subsidize a union’s political and ideological activities is self-evident. As Thomas Jefferson put it so eloquently, "‘to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.’" Preventing that evil, however, is not an easy matter, under current law. In his dissent from the Supreme Court’s first ruling on the problem, in 1961, in Machinists v. Street, the late Justice Hugo Black articulated well the difficulty in preventing the use of compulsory union dues and fees for politics and ideological purposes. To avoid constitutional questions, the Court held that the Railway Labor Act prohibits the use of objecting workers’ forced dues for political purposes, including lobbying. However, the Court’s majority held that the employees’ remedy was merely a reduction or refund of the part of the dues used for politics. Justice Black immediately recognized that the remedy was fatally flawed:
Justice Black then said that, given the importance of the "constitutional right to be wholly free from any sort of governmental compulsion in the expression of opinions," the Court should relieve protesting workers of all dues payments and require the unions to return all they had collected from those workers, with interest. The Supreme Court’s landmark 1988 Beck decision ruled that employees covered by the National Labor Relations Act also cannot lawfully be compelled to subsidize union political and ideological activities. That decision should have paved the way for all private-sector employees to stop the collection of dues for anything beyond the union’s bargaining activities. However, like Street, Beck is not self-enforcing. Experience shows that Justice Black was absolutely correct. Even with the assistance of an organization like the National Right to Work foundation, it is extraordinarily difficult for any employee or group of employees effectively to battle a labor union and ensure that they are not subsidizing its political and ideological agenda. Even with the Supreme Court’s rulings in Beck and related cases, the deck is stacked against individual employees. And, even with the help of the Foundation, which cannot assist every worker who wants to exercise his or her Beck rights, complicated and protracted litigation often is necessary to vindicate those rights. Employees must overcome many hurdles before they can reach the point discussed by Justice Black — the actual challenge to unions’ fee calculations. A major procedural hurdle that nonmembers face is finding out how the union spends their dues and fees so that they can intelligently decide whether to object. In Teachers Local 1 v. Hudson, the Supreme Court held that "potential objectors [must] be given sufficient information to gauge the propriety of the union’s fee," including "the major categories of expenses, as well as verification by an independent auditor." Despite this Supreme Court mandate, the NLRB has ruled that unions need not disclose any financial information to nonmembers until after they object. Disclosure of a union’s allocation of its chargeable and nonchargeable expenses and an independent audit of that allocation are necessary because, as the Supreme Court has recognized, only "the unions possess the facts and records from which the proportion of political to total union expenditures can reasonably be calculated." The problem is that, unless an employee undertakes litigation to challenge the amount of the fee charged, the unions themselves determine what expenses are lawfully chargeable or not. But there is no such thing as a self-butchering hog. Obviously, it is in a union’s self-interest to maximize the amount of the fees it collects, so what we have is the proverbial "fox guarding the hen house." The independent audit Hudson requires — but the Board refuses to require — provides at least some independent check on the union’s discretion and self-interest in calculating its lawfully chargeable expenses. When unions give employees financial disclosure, it often is sketchy, as it was in the case of Mr. Robert Penrod. See Penrod v. NLRB, 203 F.3d 41 (D.C.CIR. 2000). (A copy of the sketchy and unaudited "financial disclosure" given to Mr. Penrod — and approved as adequate by the NLRB — is attached hereto as Exhibit 1). Many unions also refuse to disclose any expenses of their affiliates that receive portions of the dues and fees, claiming it is "too burdensome" to provide information for all levels of the union hierarchy. Many unions do not provide audited financial disclosure at all. The NLRB has approved all these practices, too, oblivious to the obvious rejoinder that such a "burden" is a small price to pay for the unique privilege granted to labor unions to extract forced dues from unwilling employees. In Ferriso v. NLRB, the United States Court of Appeals for the District of Columbia Circuit reversed the Board’s holding that a union’s allocation of chargeable and nonchargeable expenses disclosed to nonmembers need not be verified by an independent auditor, and that it is sufficient if a union employee "verifies" the allocation. In Mr. Penrod’s case, the same court rejected the Board’s positions that objectors need not be given a detailed explanation of how the union allocated its own expenses, a full auditor’s report, and an explanation of how the union’s affiliates used their part of the money, and that only objectors must be given financial disclosure. The U.S. Court of Appeals for the D.C. Circuit held that all nonmembers at least "must be told the percentage of union dues that would be chargeable were they to become Beck objectors." Indeed, the NLRB has callously and irrationally eviscerated these procedural safeguards for workers’ Beck rights. In California Saw, the Board held that a union’s calculation of its lawfully nonchargeable expenditures need not be independently audited. The United States Court of Appeals for the District of Columbia Circuit later held that this ruling "was not rational." In Mr. Penrod’s case, the Board ruled that the Teamsters local provided employees with adequate information about their Beck rights when it merely gave objecting nonmembers a single handwritten worksheet listing nineteen broad and vague expenditure categories with no explanation of how the union calculated its allocation of chargeable and nonchargeable expenses, disclosed no information about the expenditure of the 25% of its budget that it transferred to its politically-active affiliates, and did not tell employees who had not yet objected the percentage of reduction they would receive if they made a Beck objection. The D.C. Circuit again reversed the Board, finding that "the Board’s decision reflects a classic case of lack of reasoned decisionmaking." Despite the clarity of the Ferriso and Penrod opinions, the recent past has shown that the General Counsel still refuses to issue complaints in cases identical to Ferriso and Penrod. There also is no guarantee that the Board will follow Ferriso and Penrod in other cases, because it is the Board’s practice "to ignore precedent from federal appellate courts in favor of its own interpretations" of the law. Unions are not the only source of the obstacles workers face in attempting to exercise their Beck rights. One of the biggest obstacles is the NLRB’s own failure to enforce Beck vigorously, both in the way it processes cases and in its application (or non-application) of judicial precedent. This policy doubtlessly arises from what one federal circuit court of appeals has described as the Board’s "pro-union bent," leading to "unconscionable result[s]" in cases in which the Board "reject[s] evidence that does not support the Board’s preferred result" through a "warped interpretation of the facts." Many Beck cases do not even make it to the full Board in Washington, because the NLRB’s General Counsel does not prosecute them vigorously. National Right to Work Legal Defense Foundation Staff Attorneys have represented most employees who have filed Beck charges with the Board. The General Counsel has settled many of these Beck charges with no real relief for the charging party employees, often merely requiring the offending unions to post for sixty days notices promising not to violate Beck rights in the future. The Board’s Regional Directors have refused to issue complaints on and dismissed many other charges at the General Counsel’s direction. And while this makes for compelling statistical evidence of Board "efficiency," it is efficiency which evidences an almost complete disregard for individual employee rights. Significantly, the Office of the General Counsel issued a memorandum in 1994 instructing all Regional Directors to dismiss immediately Beck charges they found unworthy, and not to issue complaints on worthy Beck charges, but to submit them to the Division of Advice. This memorandum is circumstantial evidence that, as a matter of policy, the General Counsel intended, at best, to delay the processing of Beck charges or, at worst, to spike as many as possible. Even worse, a memorandum the General Counsel issued in 1998 set up yet another roadblock to NLRB enforcement of Beck. In this memorandum, the then Acting General Counsel instructed all Regional Directors, Officers-in-Charge, and Resident Officers that Beck-type unfair labor practice charges must be dismissed unless the charging party nonmember "explain[s] why a particular expenditure treated as chargeable in a union’s disclosure is not chargeable . . . and present[s] evidence or . . . give[s] promising leads that would lead to evidence that would support that assertion." This is an impossible burden at the charge stage, because, as already noted, only "the unions possess the facts and records from which the proportion of political to total union expenditures can reasonably be calculated." The Acting General Counsel’s instruction is based on a clear misreading, if not a deliberate perversion, of dicta — non-binding legal commentary — in Air Line Pilots Ass’n v. Miller that indicated that, after "reasonable discovery, an objector can be expected to point to the expenditures or classes of expenditures he or she finds questionable." At the charge stage, an objecting employee has had no discovery, and has no right to take any under the NLRB’s procedural rules. SPECIFIC CASES: Having provided this general overview of some of the difficulties faced by individual employees challenging union misspending of their money, I will now highlight three specific NLRB cases, two very old but still pending, and one very recent. They are typical of the NLRB’s treatment of Beck charges, and amply demonstrate the disappointments, frustrations, and obstructions which employees face when utilizing its processes to pursue and protect their Beck rights. The first case — an old one — is the case of Sherry and David Pirlott of Green Bay, Wisconsin. The second case — also an old one — is the case of Robert Mohat, of Cincinnati, Ohio. The third — the recent one — is the case of Mark Simpson in western Pennsylvania. The Pirlott case. In 1989, Sherry and David Pirlott were employed by Schreiber Foods, Inc., in Green Bay, Wisconsin. (David is still an employee of Schreiber Foods; his wife, Sherry, is not). Schreiber Foods had a collective bargaining agreement with Teamsters Local 75 which covered the Pirlotts’ employment. That agreement contained a union security clause with standard language that purported to require all employees to "become and remain union members in good standing." In September 1989, the Pirlotts resigned their memberships in Teamsters Local 75, and informed the union that they wished to pay only reduced "financial core" fees under CWA v. Beck. In response, the union sent them a single page of non-audited "financial disclosure," asserting that only 1.1% of total Teamsters union dues was non-chargeable, and 98.8 % was chargeable (the missing 0.1% was unexplained) (Exhibit 4). On November 8, 1989, the Pirlotts filed an unfair labor practice charge against the Teamsters with the NLRB’s Regional Office in Milwaukee (Exhibit 5). Among other things, they alleged that the union had failed to inform employees of their right to become or remain nonmembers and Beck objectors, that the union’s "financial disclosure" was inadequate to properly inform them about the expenditures of Local 75 and its politically active affiliates, including the International Brotherhood of Teamsters, and that the union was illegally charging them for organizing activities and extra-unit activities outside of their bargaining unit (for example, money spent on public sector units like school crossing guards). The NLRB Regional Director issued a Complaint and Notice of Hearing on September 30, 1991. A trial was held before Administrative Law Judge Joel Biblowitz on March 5, 1992. At the trial, evidence was introduced to show, among other things, that the union forced all employees to become formal union members, and never informed any of them about their right to refrain from union membership under Beck and NLRB v. General Motors Corp., 373 U. S. 734 (1963). ALJ Biblowitz issued his Decision and Order on September 4, 1992. He found that the union had provided the Pirlotts with inadequate financial information about its own expenditures and those of its affiliates, and that the union had unlawfully charged them for certain organizing and other expenditures outside of their bargaining unit. He upheld certain other union practices. The General Counsel and the Pirlotts filed timely Exceptions to that Decision and Order in October 1992; the Teamsters filed Cross-Exceptions. The last briefs on these Exceptions and Cross-Exceptions were filed that same month. It was at this point that the NLRB’s "big stall" began. For more than six (6) years, the Board failed to rule on this case. On June 3, 1998, my colleague, Glenn Taubman, complained to the Board about this delay, and threatened to file a mandamus petition to force a decision. He received a response from then-NLRB Chairman Gould dated June 4, 1998, in which Chairman Gould pointed the finger at his colleagues, saying that a prompt decision was unlikely because "all Board members must give their consent" before a decision can be issued. On or about June 3, 1999, the Pirlotts filed an action for mandamus against the NLRB. Only after the U.S. Court of Appeals for the District of Columbia issued an order requiring the Board to respond to the mandamus petition did the Board decide this case. On September 1, 1999, more than six years after the ALJ’s decision, the Board issued its ruling, a 4-1 decision, largely in favor of the union. Teamsters Local 75 (Schreiber Foods, Inc.), 329 NLRB No. 12 (1999). By and large, that ruling continued the Board’s practice of diminishing employees’ Beck rights, and supinely bowing to whatever rationale the unions use to block employees’ rights. For example, the NLRB held that the union’s single page of "financial disclosure" (Exhibit 4) showing a 1.1% nonchargeability figure was adequate, even though the ALJ had held it to be inadequate and "implausible" on its face. Thus, it took the Board over six years to issue a decision which did little but diminish and deprecate employees’ Beck rights. But that was not even close to the end of the Pirlott’s litigation odyssey. Despite the fact that the case was already ten years old, the Board remanded it to the Administrative Law Judge, for the development of a record upon which the Board will someday hopefully be able to decide whether organizing and extra-unit expenditures are chargeable to objecting nonmembers. (It should be noted that the Supreme Court has already held in 1984 in Ellis v. Brotherhood of Railway Clerks that organizing expenses are not chargeable under the Railway Labor Act, but the Board refuses to treat that decision (and Beck itself) as binding precedent). What happened next was even more unbelievable. Rather than promptly scheduling the case for a trial on remand as the Board had ordered, then-General Counsel Fred Feinstein tried to scuttle the entire case. Through the Milwaukee regional office, then-General Counsel Feinstein asked the ALJ to refuse to re-open the case, and to dismiss the remaining portions of the complaint — the very issues which the Board had remanded for further fact-finding (Exhibit 6). On April 24, 2000, the ALJ refused to do so, holding that it was his duty under the Board’s remand order to re-open the case for further evidence (Exhibit 7). Not satisfied with this result, then-General Counsel Feinstein continued to stall. He filed a "Request for Special Permission to Appeal Directly to the Board the ALJ’s Denial of the General Counsel’s Motion to Close the record and Dismiss the Remaining portions of the Complaint" (Exhibit 8). On February 5, 2001, the NLRB unanimously rejected this request, and ordered the case to go forward as originally ordered (Exhibit 9). Only last month was the remanded trial finally held in Milwaukee. Thus, even though the Board decided in September 1999 that a remand was necessary, bureaucratic infighting between the NLRB and its General Counsel caused an additional two-year delay. And that is still not the end of the Pirlott’s litigation odyssey. Now the Pirlotts must wait for another ALJ decision, another NLRB decision, and finally, probably, an appeal to a U.S. Court of Appeals and perhaps the U.S. Supreme Court. In all likelihood, this litigation by the Pirlotts, who filed a Beck unfair labor charge with the NLRB in 1989 to vindicate their rights with respect to a few hundred dollars that the Teamsters unions demand from their wages, will take at least 15 years, if not longer. When clients like the Pirlotts and Bob Mohat ask me, in disbelief, if this is normal practice before the NLRB, I am constrained to tell them that the NLRB is one of the most bureaucratic, inefficient and institutionally pro-union organizations in our entire government. The Robert Mohat case: The second typical NLRB case that I would like to highlight is also very old, arising in Cincinnati, Ohio. Robert Mohat works in print shop, employed by Polymark Corporation in Cincinnati, Ohio. Mr. Mohat’s bargaining unit is represented by the International Union of Electronic, Electrical, Salaried, Machine and Furniture Workers (IUE) and its Local 795. His litigation gauntlet has been only slightly less onerous than that of the Pirlotts. In 1990, when Mr. Mohat’s odyssey started, Polymark had a collective bargaining agreement with IUE Local 795 which covered Mr. Mohat’s employment. The agreement contained a forced-unionism clause with the standard language purporting to require employees to become and remain union members in good standing. The collective bargaining agreement also contained a dues checkoff provision permitting Mr. Mohat to sign a wage assignment authorizing the deduction of union dues from his wages. He signed the dues checkoff authorization in 1986. Although the unions had never notified Mr. Mohat of his Beck rights, Mr. Mohat learned of them independently, from a newspaper article. In September 1990, Mr. Mohat requested a refund of the dues used for non-bargaining purposes. Since he failed to use the "magic words" "I resign," the International’s Secretary-Treasurer responded by saying that Mr. Mohat had perhaps ignored the notice of Beck rights buried in its internal union magazine, because he was a union member and it didn’t apply to him. The Secretary-Treasurer never explained that Mr. Mohat must resign from the union "membership" required by the collective bargaining agreement in order to object and prevent forced subsidization of the union’s political, ideological, and other non-bargaining activities. Mr. Mohat then used the "magic words" in November 1990, resigning from membership, objecting to the use of his fees for political purposes, and revoking his dues checkoff authorization. While Local 795 refused to honor his resignation and told Mr. Mohat that he could not resign until its arbitrary "window period" in April 1991, Polymark refused to honor his dues checkoff revocation, and continued to deduct full union dues from his wages. In December 1990, Mr. Mohat filed unfair labor practice charges against both with the NLRB’s Regional Office in Cincinnati (Exhibits 10 and 11). Among other things, these charges alleged that the forced-unionism clause was illegal on its face, that the continued deduction of full union dues was unlawful, and that IUE and its Local 795 had failed to comply with Beck’s requirements for notice and financial disclosure. The NLRB Regional Director issued Complaints and Notice of Hearing in July 1991. A trial was held before Administrative Law Judge Karl Buschmann in December 1991. At the trial, the evidence demonstrated that the unions and Polymark forced all employees to become formal union members, and never informed them about their right to refrain from union membership under Beck and General Motors. ALJ Buschmann issued his Decision and Order on September 30, 1992. He found that Polymark had violated the Act by failing to honor Mr. Mohat's dues checkoff revocation, and that the unions — who defended their refusal to honor immediately his resignation from union membership — failed to comply with Beck's notice requirements. ALJ Buschmann refused to find the forced-unionism clause unlawful on its face. All parties filed timely exceptions from the decisions, and briefing on those exceptions was completed on 23 November 1992. Like the Pirlotts’ case, it was at this point that the Board's "big stall" of Mr. Mohat’s case began. Here, as there, for more than six (6) years, the Board refused to rule on this case. As it was one of several cases involving a challenge to the legality of forced-unionism language which — while it tracks the language of the Act — misleads employees (and all but labor lawyers trained in the pilpulism of this area of the law) into believing that formal union membership can lawfully be required, cynics might wonder whether the Board was simply delaying a strong factual case until other, less compelling factual cases could be decided by the courts nd foreclose Mr. Mohat’s opportunities for relief. In light of the Board’s failure to issue decision, and based in part upon Chairman Gould’s response to Foundation attorney Taubman’s entreaties with regard to the Pirlotts, Mr. Mohat filed an action for mandamus against the NLRB in June 1999. As with the Pirlotts, it took an order of the United States Court of Appeals for the District of Columbia Circuit to prompt the Board to issue a decision in this case. On 1 September 1999, nearly seven years after the ALJ’s decision, the Board ruled largely for the union. The Board’s protracted delay is amazing, since the four issues its decision addressed had all been addressed in prior decisions. The first issue was the legality of the forced-unionism clause itself. Even though the Board had addressed this issue (unfavorably to employees) in no less than two other cases, the Board continued sitting on Mr. Mohat’s case for four years after it had dealt with the issue a second time. The second issue was the adequacy of the unions’ Beck notice. Here, the Board continued its practice of avoiding questions of the adequacy of union disclosure under Beck. Thus, while the ALJ had addressed the adequacy of the unions’ Beck notice (which they proffered as a defense against Mr. Mohat’s charges), the Board would not decide the issue because its inadequacy was not alleged in the Complaint. Here, too, the Board declared that it was relying upon well-settled law, but provided no explanation as to why it did not apply this rule to Mr. Mohat’s case for four years after the rule was created. The third issue was the Board’s affirmance of the ALJ’s determination that Mr. Mohat could not "take control of his relationship with his bargaining representative" by revoking his dues checkoff authorization (authorizing only the deduction of "membership dues") pending the unions’ compliance with Beck. Member Brame dissented from this determination, which was consistent with the Board’s earlier decisionmaking, expressed in 1995. Again, it inexplicably took the Board nearly four more years to apply that reasoning to Mr. Mohat’s case. The fourth issue, concerning the only violation found by the ALJ that was affirmed by Board, was the unions’ attempt to limit resignation and objection to the exaction of full union dues to a one-month "window period." Even that was a proposition supported by a bare majority of the Members, with Members Fox and Hurtgen dissenting as to that part. This portion of the decision was also consistent with a prior Board decision, yet the Board offered no explanation for its nearly four-year delay in merely applying its reasoning to Mr. Mohat’s case. In short, then, the Board took over six years to issue a decision that did little but apply what it would doubtless characterize as established law issued while Mr. Mohat’s case languished. To give credit where credit is due, Mr. Mohat has not been subjected to the machinations from which the Pirlotts have suffered on remand, though getting his money back — he received it just in the last two weeks — took nearly a year after the Sixth Circuit issued its decision. The Mark Simpson case: The final typical NLRB case that I would like to highlight is a very recent one. Mark Simpson is a nursing home worker, employed by Shenango Presbyterian Seniorcare in New Wilmington, Pennsylvania. Mr. Simpson’s bargaining unit is represented by Teamsters Local 250, based in Pittsburgh. Although the union had never notified him of his Beck rights, Mr. Simpson learned of them independently (from the Foundation’s web site, www.nrtw.org), and in June, 2000, resigned from union membership and claimed his rights. (Exhibit 12). Despite Mr. Simpson’s resignation and Beck objection letter, Local 250 union officials continued to take full union dues from his paycheck, and provided him with not a shred of financial information to explain or justify any agency fee calculation. In October 2000, Mr. Simpson filed an unfair labor practice charge with the NLRB’s Pittsburgh regional office (Exhibit 13). In January 2001, six months after Mr. Simpson’s resignation, and 2 months after the filing of the ULP charge, Teamsters Local 250 finally acknowledged his right to resign and object (Exhibit 14) (it should be noted that the union continued deducting full union dues during this entire period). The union’s January 2001 letter to Mr. Simpson claimed that only 1.3% of total Teamsters dues was nonchargeable under Beck, and that 98.7% was chargeable. The union still provided not a shred of financial disclosure to explain or justify this mystifying and patently implausible calculation (in Beck, only 21% of full union dues was found to be chargeable, see 487 U.S. at 742). On February 6, 2001, Mr. Simpson filed a second unfair labor practice charge with the NLRB, reiterating the fact that Teamsters Local 250 had provided him with no financial disclosure whatsoever to explain or justify its 98.7% chargeability calculation. (Exhibit 15). On March 29, 2001, the NLRB Regional Director in Pittsburgh dismissed Mr. Simpson’s first ULP charge, holding that the union had provided adequate financial information simply by tardily disclosing — without any substantiation whatsoever — its 98.7% chargeable/1.3% nonchargeable calculation (Exhibit 16, stating that "the information provided to the Charging Party was deemed adequate to fulfill the union’s obligations to a Beck objector"). This farcical dismissal is now pending on appeal to the current NLRB General Counsel (Exhibit 17). On the same day that his first ULP charge was dismissed, Teamsters Local 250 provided Mr. Simpson with an unaudited allocation of its expenses, purporting to explain and justify its 98.7% chargeable/1.3% nonchargeable calculation (Exhibit 18). This "financial disclosure" is not audited, contains no information about the expenditures of the International Brotherhood of Teamsters and Local 250’s other affiliates, and contains no notes or other explanations of the union’s expenditure categories. This "financial disclosure" would clearly be inadequate under the Court of Appeals decisions in Penrod v. NLRB, 203 F.3d 41 (D.C. Cir. 2000), and Ferriso v. NLRB, 125 F.3d 865 (D.C. Cir. 1997). Nevertheless, on July 27, 2001, the NLRB Regional Director in Pittsburgh dismissed Mr. Simpson’s second ULP charge, holding that the union had provided adequate financial information. In this dismissal letter, the NLRB Regional Director explicitly refused to follow the Court of Appeals’ ruling in Penrod, and instead relied upon the NLRB’s reversed ruling in that case (Exhibit 19). Thus, the General Counsel’s office refuses to follow the Court of Appeals’ law, and continues to dismiss employees’ challenges wherever possible, on the flimsiest of rationales. CONCLUSION: This brings me full circle to Justice Black’s prediction that the judicial refund and reduction remedy adopted by the Supreme Court in Machinists v. Street is inherently ineffective, especially so when the NLRB is asked to oversee that remedy via an individual employee’s unfair labor practice charge. The experiences of the individual workers I have described — the Pirlotts, Bob Mohat, and Mark Simpson — are not isolated examples of abuse of the law, but part of a systemic problem. The National Labor Relations Act and Railway Labor Act, as written by Congress and interpreted by the courts and the National Labor Relations Board, do not adequately protect the constitutional and statutory right of workers — unequivocally recognized by the Supreme Court in Beck and related cases — to refuse to subsidize union political, ideological, and other non-bargaining activities. Indeed, the record of law on the issues that the NLRB has decided are case studies in administrative non-acquiescence to the mandates of the federal courts, the bureaucratic creation of impediments to protection of individual employee rights by a federal agency which, in the Beck case, opposed recognition of the very rights that are now its responsibility to uphold and enforce. And this is to say nothing of the issues the General Counsel has prevented the Board from addressing, such as imposition of an objection requirement for nonmembers, who have never manifested any indicia of support for union activities. The only federal labor laws that do adequately protect that fundamental right of workers are the Federal Labor Relations Act and the statute that governs the labor relations of postal employees. Both prohibit agreements requiring workers to join or pay dues to a union as a condition of employment. Likewise, the only practical and effective solution to ending the compulsion and in protecting to the maximum extent employee free choice in the private sector is through passage of the National Right to Work Act, which would put responsibility for protecting individual employee rights back into the hands of the men and women who can most effectively protect them: America’s workers. Any other response is a half-measure following series of half-measures that have consistently impeded the ability of America’s workers to protect their rights. Respectfully submitted, W. James Young, Staff Attorney |