Mr. Boehm, in your testimony you include some examples of union officials illegally misappropriating union dues and agency fees paid by working men and women. You also imply that there is a wave of corruption among union officials. Please provide the most complete list possible within the time allotted of instances of union corruption so that the Committee may establish whether there are just a few corrupt union officials out there or whether there truly is widespread corruption among todays union officials and state your opinion as to how pervasive corruption is among union officials?
 

Union corruption, such as embezzlement of union dues and agency fees, is truly widespread in America today. The phrase wave of union corruption was first applied to the current state of the unions, not by myself, but rather by the New York Times.¹ Exhibit A.

To help the Committee establish the pervasiveness of union corruption today, I have attached a complete set of the National Legal and Policy Centers Union Corruption Update (48 issues). Exhibit B. Since June 1998, the Union Corruption Update newsletter has been published every two weeks to chronicle indictments, guilty pleas, convictions, etc., tied to union corruption. It is currently faxed or emailed to about 1,000 policy makers, union dissidents, law enforcement personnel, reporters and others who may find the information useful. For the Committees future reference, Union Corruption Update is archived and indexed (by union and by state) at <http://www.nlpc.org/olap/ucu/ index.htm>.

Additionally, I have attached a forthcoming law review article by Michael J. Nelson, Director of the Organized Labor Accountability Project of the National Legal and Policy Center.² Exhibit C. The article, Slowing Union Embezzlement: Reforming the Landrum-Griffin Act to Better Combat Union Embezzlement, provides several detailed case studies of union embezzlements. Pay particular attention to the Introduction, Part II.A, and Part III.A.2-3 of the article.

I have also attached several National Legal and Policy Center reports and action items as well as two public documents that detail corruption in the AFL-CIO (Exhibit D), the Hotel Employees and Restaurant Employees International Union (Exhibits E, F, G), Laborers International Union of North America (Exhibit H), the International Brotherhood of Teamsters (Exhibits D, I, J). Finally, I have attached several newspaper clippings that further illustrate the point that union corruption is widespread. Exhibits K-U. Pay special attention to Exhibit K on the American Federation State, County and Municipal Employees (AFSCME).
 

To what extent is it more difficult for officials to uncover and punish corruption among officials of unions that are not regulated under federal labor laws?
 

Amazingly, union members do not have equal rights. A large portion of the unionized workforce is not regulated by the landmark Labor-Management Reporting and Disclosure Act of 1959, popularly known as the Landrum-Griffin Act.³ Congress enacted Landrum-Griffin in response to the shocking union corruption hearings of Senator John L. McClellan (D-Ark.) in 1957-59. The Act affords union members basic democratic rights, mandates union disclosures and criminalizes union corruption.

However, the Act excludes many public sector union members, including many within AFSCME, as well as state and central bodies of the AFL-CIO. For a detailed legal analysis of this exclusion, please see Part III.A.2 of Mr. Nelsons law review article.⁴ While Landrum-Griffin certainly needs strengthening (please see my response to question one), its provisions are better than the scant protections afforded to those not covered by the Act. This exclusion makes it very difficult, if not impossible, to uncover and punish corruption in these unregulated union organizations.

Moreover, according to Bureau of Labor Statistics, there were 7.1 million unionized public employees (or 43 percent of the unionized workforce) in America in 1999. While not all of these individuals belong to unregulated unions, many do.⁵ Therefore, the extent of the difficult detection of corruption and the lack of punishment is arguably very large.

In light of the corruption scandals within AFSCME,⁶ as well as the recent revelations of corruption within the Kentucky AFL-CIO,⁷ this loophole must be closed in any serious labor law reform legislation.

In your testimony, you stated that my proposed solution for making Beck rights meaningful disclosure to union members and agency fee payers of union expenditures akin to the annual reports shareholder receive pursuant to securities law would also stem the tide of corruption among union officials. Could you please elaborate on this point? Specifically, please explain the connection between a lack of disclosure and problems with enforcing Beck rights and the connection between a lack of disclosure and union corruption? Also explain why current disclosures that some unions make to the labor department, such as LM-2 forms, are inadequate for these purposes?
 

As I detailed in my written testimony, solutions for the union corruption problem track very closely with solutions to the union compelled speech problem. The current reporting and disclosure provisions of Landrum-Griffin are better than no provisions, but as I believe Professor Leo Troy stated at the April 12 hearing, the current forms, such as the Department of Labors LM-2, are virtually useless. For a detailed legal analysis of Landrum-Griffins reporting and disclosure requirements and of possible reforms, please see Part I.B.2, Part III.A.1, 4, and Part III.B.2 of Mr. Nelsons law review article.⁸

Increased transparency and accountability in union reporting and disclosure would prevent union corruption. Currently, unions are not required to under go annual audits. They are not required to report financial information quarterly. Their financial disclosures are not subject generally accepted auditing standards. Their financial record keeping is not required to conform to generally accepted accounting principles. Independent public accounts are not required to be part of the union reporting and disclosure process. Requiring such measures of unions would greatly decrease the opportunity for the corruption detailed in my response to question one. A good blueprint for such accountability measures is the Securities and Exchange Commissions regulations that govern corporations. Mr. Nelson has analyzed the relevant statutes and regulations in Part III.A.1 of his law review article.⁹

These same reforms would improve the union compelled speech problem. One key to making the landmark Communications Workers of America v. Beck¹⁰ decision work for an agency-fee payer is knowledge, with nearly exact precision and accuracy, of how his union spends its funds. Having SEC-like accounting and auditing requirements and mandating the resulting financial records be disclosed to agency-fee payers would improve Beck rights.

For support for these types of Beck-improvement reforms, please see the attached copy of the ground-breaking U.S. Court of Appeals for the District of Columbia Circuit decision: Ferriso v. NLRB.¹¹ Exhibit V. Ferriso held that a unions calculations in agency-fee situations should be subject to an independent auditor.¹² It stated:
 

[NLRBs] rejection of the independent auditor requirement was not rational, because any rational interpretation of the [National Labor Relations Acts] duty of fair representation will necessarily include an independent-auditor requirement.¹³

In his testimony, Mr. Gold of the AFL-CIO indicated that there is no such thing as forced unionism and so, by extension, there is no compelled political speech for workers who are covered by a union contract. Do you agree?
 

I do not agree, for four principal reasons.

First, although the courts have long held that actual union membership cannot be required under the National Labor Relations (NLRA)¹⁸ and Railway Labor (RLA)¹⁹ Acts, that is not widely known by workers. Most unions and employers negotiate collective bargaining agreements that say that membership or membership in good standing is required as a condition of employment. However, as the then Chairman of the National Labor Relations Board (NLRB) William Gould said in a 1998 opinion, even today, many workers and employers do not understand that membership is what the United States Supreme Court has defined it to be.²⁰ Obviously, these agreements are likely to mislead employees into believing that they must join the union unless someone tells them that the word membership in the labor contract does not mean what it does in common parlance.

As Mr. Gold points out, the courts and the NLRB have ruled that unions have a duty to inform workers that they have a right not to join and, if they do not join, a right not to subsidize the unions political activities. However, that duty is honored more in the breach than in the observance, as Justices Kennedy and Thomas recognized in their concurring opinion in Marquez v. Screen Actors Guild:
 

when an employee who is approached regarding union membership expresses reluctance, a union frequently will produce or invoke the collective bargaining agreement . . . . The employee, unschooled in semantic legal fictions, cannot possibly discern his rights from a document that has been designed by the union to conceal them. In such a context, member is not a term of art, . . . but one of deception.²¹

Employers have no legal duty to inform employees that they do not have to join the union. Many employers believe that the contract requires exactly what it says, i.e., membership. Most employers who are aware of the Supreme Courts technical construction of that term do not inform their employees that they have the right not to join the union, because they do not want legal trouble with the union. If an employer does tell employees what their rights are, it might find itself defending an unfair labor practice charge filed by the union alleging that the employer has unlawfully attempted to discourage membership in the union in violation of Section 8(a)(3) of the NLRA.²⁴ In one case,²⁵ the NLRBs General Counsel prosecuted a complaint against an employer for giving its employees information about their rights under Beck.²⁶ In another,²⁷ the NLRB found an employer liable when it would not agree to a compulsory unionism provision without prior union financial disclosure to ensure compliance with Beck.

In sum, forced union membership, and thus compelled financial support of union political activity, results from misinformation and misrepresentation engendered by the compulsory unionism contract provisions authorized by the federal labor statutes.

Second, under current law, an employee must be a nonmember if he or she wants to refrain from financially supporting the political activity of his or her exclusive bargaining agent. However, nonmembers are denied important employment rights that accompany union membership, such as the right to vote on ratification of contracts and participate in the selection of the union representatives who negotiate their terms and conditions of employment.²⁸ Under the system of exclusive representation imposed by the federal labor statutes, individual employees cannot negotiate their own terms and conditions of employment.²⁹ Consequently, many workers are compelled to become or remain members, despite their disagreement with the unions politics, because that is the only way that they can have any say in the determination of their wages and other terms and conditions that govern their working lives.

Third, when unions give employees notice of their rights not to join and not to subsidize union political activity, they commonly hide that notice in fine print inside union propaganda. A particularly egregious example of that occurred, and was upheld by the NLRB, in California Saw,³⁰ which Mr. Gold disingenuously cites as providing dissident workers with a fully-developed set of rules to protect their rights.³¹ In that case, the Machinists union published its Beck notice of nonmembers right to object to subsidizing union political activity on the sixth page of [an] eight-page newsletter. The first page of that newsletter was largely occupied by an article about Democratic Presidential hopefuls, and the newsletter also contained a number of other political articles . . . , all with a strong Democratic bias.³² That is hardly notice designed to come to the attention of nonmembers who oppose the unions political activities.³³

Fourth, unions usually limit Beck objections to a short window period and require nonmembers annually to renew their objections. In California Saw, the NLRB approved both of these technical hurdles to the exercise of the right not to subsidize union politics.³⁴ Thus, many employees are compelled to pay for union political activities because their objections are considered untimely under union rules. However, employees should be free to cut off their support of union political activity at any time they discover that the union is using their monies for purposes they oppose, not just during a single, short and arbitrary window period.

Moreover, union officials do not require employees to renew their memberships or dues deduction authorizations every year. Employees should similarly be free to make objections that continue in effect until withdrawn. As one United States Court of Appeals has said in declining to follow California Saw, the unduly cumbersome annual objection requirement is designed to prevent employees from exercising their constitutionally-based right of objection, and serves only to further the illegitimate interest of the [union] in collecting full dues from nonmembers who would not willingly pay more than the portion allocable to activities germane to collective bargaining.³⁵

Do you have any other comments on Mr. Golds testimony?
 

Yes.

First, I do not agree with Mr. Golds facile, paternalistic and unsupported assertion that employees who choose to be non-member agency fee payers . . . benefit from all of the unions activities on their behalf.³⁶ When the union operates in the political sphere, worker and union cannot be said to speak with one voice.³⁷ If the union is supporting causes that the employee opposes, by definition its activities are to his detriment. As Justice Douglas recognized in the first case outlawing the use of compulsory union dues and fees for political purposes, the
 

collection of dues for paying the costs of collective bargaining of which each member is a beneficiary is one thing. If, however, dues are used, or assessments are made, to promote or oppose birth control, to repeal or increase the taxes on cosmetics, to promote or oppose the admission of Red China into the United Nations, and the like, then the group compels an individual to support with his money causes beyond what gave rise to the need for group action.³⁸

pilots are surely interested in airline safety, but it would certainly not be unexpected that pilots would have varying views as to the desirability of government regulationincluding those regulations of airlines that pertain to safety. The benefits of any regulation include trade-offs, and certain pilots might be reluctant to pay the costs either directly or indirectly of increased regulations, just as others might oppose relaxed regulations that could expand work opportunities. Some, of course, might even object to such regulations on principle.³⁹

Second, Mr. Gold falsely analogizes "dissident workers" to "dissident corporate shareholders or members of other organizations."⁴¹  Corporate shareholders are not required to buy stock, and individuals are not required to join or pay fees to other private organizations, in order to keep their jobs. Therefore, how much corporations and other organizations spend on politics is irrelevant to the question before this Senate Committee.

Third, Mr. Gold also falsely analogizes union-represented workers to taxpayers in the society at large.⁴² The analogy is false, because
 

[c]ompelled support of a private association is fundamentally different from compelled support of government. . . . [T]he reason for permitting the government to compel the payment of taxes and to spend money on controversial projects is that the government is representative of the people. The same cannot be said of a union, which is representative only of one segment of the population.⁴³

Is it your belief that the Beck decision is being adequately enforced?
 

The Beck decision is not being adequately enforced for two reasons.

First, the NLRB has failed to enforce Beck vigorously, both procedurally and substantively.

Procedurally:  The Board delayed for eight years before it issued its first post-Beck decision, California Saw. Many other Beck cases languished before the Board for similar lengthy periods of time. A letter from the then Chairman of the NLRB to a member of the Subcommittee on Human Resources of the House Committee on Government Reform and Oversight, responding to questions raised by the Congressman as a result of the Subcommittees July 24, 1997, hearing on Oversight of the National Labor Relations Board, admitted that at the end of July 1997 the sixty-five cases then before the Board that were two years or older included twenty-one Beck cases. In that letter, the Chairman implied that a single Board member was holding up decisions in most of the old pending cases for political considerations.⁴⁶ One of those old Beck cases was not decided until after it had been pending for seven years.⁴⁷ Moreover, it was issued only after the objecting worker petitioned for mandamus and obtained an order from the United States Court of Appeals for the District of Columbia Circuit requiring the Board to set a date by which it would decide the case.⁴⁸

Many cases do not even make it to the Board, because the NLRBs General Counsel does not prosecute them vigorously. According to the National Right to Work Legal Defense Foundations staff attorneys, who have represented most employees who have filed Beck charges with the Board, the General Counsel has settled many Beck charges with no real relief for the charging employees. The Boards Regional Directors have refused to issue complaints on and dismissed many other charges at the direction of the General Counsel.

Significantly, a memorandum issued in 1994 by the Office of the General Counsel instructed 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.⁴⁹ 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.⁵⁰

Even worse, another memorandum issued by the General Counsel in 1998 set up yet another roadblock to enforcement of Beck in the NLRB. 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 unions disclosure is not chargeable and . . . present[s] evidence or . . . give[s] promising leads that would lead to evidence that would support that assertion.⁵¹ This is an impossible burden at the charge stage, because, as the Supreme Court recognized in Railway Clerks v. Allen, only the unions possess the facts and records from which the proportion of political to total union expenditures can reasonably be calculated.⁵² The Acting General Counsels instruction is based on a clear misreading, if not a deliberate perversion, of dicta in Air Line Pilots Association 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.⁵³ At the charge stage, an objecting employee has had no discovery, and has no right to take any under the NLRBs procedural rules.

Substantively: As discussed above, the NLRB has permitted unions to satisfy their notice obligations with notices that are calculated not to be seen by potential objectors, and approved technical requirements that make it more difficult for workers to exercise their right to object. In addition, in California Saw and other cases, the NLRB has weakened, if not gutted, the procedural protections provided to nonmembers that courts have found constitutionally required in cases involving public employees. It has also repudiated Supreme Court precedent as to what activities objecting nonmembers can be required to subsidize.

In Teachers Local 1 v. Hudson, the Supreme Court held that [b]asic considerations of fairness, as well as concern for the First Amendment rights at stake, . . . dictate that the potential objectors be given sufficient information to gauge the propriety of the unions fee.⁵⁴ The Court specified that adequate disclosure surely would include the major categories of expenses, as well as verification by an independent auditor, and that the disclosure must be made not only for the local union that collects compulsory fees, but also for its affiliated state and national labor organizations.⁵⁵ The NLRB has eviscerated this requirement by holding that only actual objectors, not all potential objectors, are entitled to disclosure of the unions major categories of expenses and the percentage of dues that objectors will pay;⁵⁶  that verification by an independent auditor is unnecessary, and it is sufficient if the unions disclosure is verified by a union employee;⁵⁷ and that the financial disclosure need not be made for all levels of the union.⁵⁸

The Board also has refused to follow Supreme Court precedent as to what activities are lawfully chargeable to objecting nonmembers. In Beck, the Court concluded that [Section] 8(a)(3) [of the NLRA], like its statutory equivalent, [Section] 2, Eleventh of the RLA, authorizes the exaction of only those fees and dues necessary to performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues, quoting from the Courts earlier decision in Ellis v. Railway Clerks.⁵⁹ Moreover, Beck specifically ruled that decisions in this area of the law under the RLA are controlling under the NLRA, for [Section] 8(a)(3) and [Section] 2, Eleventh are in all material respects identical, and Congress intended the same language to have the same meaning in both statutes. In Ellis, the Court held that union organizing expenses are not lawfully chargeable to objecting workers under the RLA, because organizing has only an attenuated connection with collective bargaining and only in the most distant way works to the benefit of those already paying dues.⁶⁰ Despite these clear directives of the Supreme Court, the Board has held that organizing is chargeable to objecting nonmembers under the NLRA.⁶¹

Second, the Beck decision is not being adequately enforced even in the courts, due to the inherent difficulty of enforcing it. Workers who sue their union over its calculation of their compulsory fees must hire lawyers, accountants, and statisticians to rebut the unions claims. They must spend years fighting procedural motions by the union and engaging in discovery, reviewing its books and records, and then face protracted trials. For example, Beck was in the courts for eleven years, including a 28-day hearing before a special master, before it was decided by the Supreme Court, and even then the case was remanded for further proceedings.⁶² Lehnert was filed in 1978, required a 12-day trial, and was not decided by the Supreme Court until 1991, and it too was remanded for further proceedings.⁶³ Miller was filed in 1991, was not decided by the Supreme Court until 1998, and is still pending on remand.⁶⁴

These difficulties were predicted in the very first case that reached the Supreme Court involving union spending of compulsory dues for political and other nonbargaining purposes. In Machinists v. Street,⁶⁵ to avoid constitutional questions, the Court held that the RLA prohibits the use of objecting workers dues for political purposes. However, the Courts majority ruled that the employees remedy was merely a reduction or refund of the part of the dues used for politics. Justice Black exposed the serious problem inherent in that remedy:
 

It may be that courts and lawyers with sufficient skill in accounting, algebra, geometry, trigonometry and calculus will be able to extract the proper microscopic answer from the voluminous and complex accounting records of the local, national, and international unions involved. It seems to me . . . however, that . . . this formula with its attendant trial burdens promises little hope for financial recompense to the individual workers whose First Amendment freedoms have been flagrantly violated.⁶⁶

Justice Black argued 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 payment of dues and require the unions to return all they had collected from the workers, with interest.⁶⁷

Experience shows that Justice Black was right. Without the help of an organization like the National Right to Work Legal Defense Foundation,⁶⁸ it is impossible for any worker or group of workers effectively to challenge a union and ensure that they are not subsidizing its political and ideological agenda. Even with the help of a legal aid organization, the task is monumental and takes years. The Supreme Court is unlikely to overturn its holdings limiting the judicial remedies available to objecting workers. Therefore, the only way effectively to prevent the misuse of compulsory dues for politics is for Congress to repeal the provisions of the NLRA and RLA that authorize labor contracts requiring payment of union dues and fees as a condition of employment. In short, Congress should pass a national right-to-work law.

A Stephen Greenhouse, Corruption Tests Labor While it Recruits, N.Y. Times, Jan. 3, 1999, at 14.

B Union Corruption Update: Vol. 1, Issues 1-14 (1998); Vol. 2, Issues 1-26 (1999); Vol. 3, Issues 1-8 (2000).

C Michael J. Nelson, Slowing Union Embezzlement: Reforming the Landrum-Griffin Actto Better Combat Union Embezzlement, 8 Geo. Mason L. Rev. --- (2000). (Please note that pagination of Mr. Nelsons article will change once it is published; I would be happy to provide a final copy to the Committee upon publication.)

D Letter from Ken Boehm, Chairman, National Legal and Policy Center, to Executive Council Members, AFL-CIO, Feb. 11, 2000 (requesting that the Executive Council remove AFL-CIO secretary-treasurer Richard L. Trumka for his alleged role in the 1996 Teamsters money-laundering scandal and his subsequent invocation of the Fifth Amendment). (Please note that the attached letter was sent to each individual on the Executive Council. The attached copy to Stuart Applebaum of the United Food and Commercial Workers International Union is identical to the letters sent to the other Executive Council Members.)

E Letter from Ken Boehm, Chairman, National Legal and Policy Center, to Kurt W. Muellenberg, Public Review Board Member, Hotel Employees and Restaurant Employees International Union, Aug. 30, 1999 (requesting an investigation of HERE President John W. Wilhelm and other officials' implementation of reform recommendations).

F Letter from Kenneth P. Purcell, Attorney, Winston & Strawn, to Ken Boehm, Chairman, National Legal and Policy Center, Sept. 20, 1999 (responding to Exhibit E).

G Kurt W. Muellenberg, Monitors Report of HERE International Union Covering September 5, 1995 to August 25, 1998.

H National Legal and Policy Center, Report, Failure of the LIUNA Reform Effort, Jan. 1999.

I National Legal and Policy Center, Chart, Teamsters Money-Laundering Schemes, Nov. 1997.

J Kenneth Conboy, Decision of the Election Officer for the International Brotherhood of Teamsters Disqualifying Teamsters President Ron Carey, Nov. 17, 1997.

K Steven Greenhouse, Document Details Abuses in Union of Civil Servants, N.Y. Times, Jan. 21, 2000, at A-1, A-20.

L Ken Boehm, Down But Not Out: Surviving Scandal, Citizen Action is Back, Wash. Times, Jan. 13, 2000, at A-15.

M Robert D. Novak, In Dubious Company, Wash. Post, Sept. 13, 1999, at A27.

N William Murphy, Sweeneys Salary: Janitors Gave AFL-CIO Boss Hundreds of Thousands, Newsday, Feb. 4, 1999, at A3.

O Who is Robert Luskin? Investors Business Daily, Jan. 27, 1999, at A24.

P Stephen Franklin, New Efforts to Clean Up Labor Often Union-Made, Chi. Trib., Jan. 24, 1999, at 5.6.

Q Ken Boehm, Gerald W. McEntee (separate letters-to-the-editor), A Union Investigation, Wall St. J., Dec. 4, 1998.

R William Murphy, Spending Called Extravagant: Accountability Questioned, Newsday, Dec. 1, 1998, at A5, A60.

S Ken Boehm, Teamsters Corruption: One Case Among Many, Investors Business Daily, Sept. 24, 1998.

T Rael Jean Isaac, A Corrupt Union Escapes Justice, Wall St. J., July 27, 1998.

U Jamie Butters, Kentucky Labor Group Tries to Regain Trust after Difficult Year, Lexington Her. -Leader, July 26, 1999.

V Ferriso v. NLRB, 125 F.3d 865 (D.C. Cir. 1997).

² Michael J. Nelson, Comment, Slowing Union Corruption: Reforming the Landrum-Griffin Act to Better Combat Union Embezzlement, 8 GEO. MASON L. REV. --- (2000).

³ 73 Stat. 519 (1959) (codified as amended at 29 U.S.C. §§ 401-531 (2000)).

⁴ Nelson, supra note 2 (Exhibit C).

⁵ Id.

⁶ Steven Greenhouse, Document Details Abuses in Union of Civil Servants, N.Y. TIMES, Jan. 21, 2000, at A-1, A-20 (Exhibit K); see also Exhibits A-C, Q-R.

⁷ Jamie Butters, Kentucky Labor Group Tries to Regain Trust after Difficult Year, LEXINGTON HER. -LEADER, July 26, 1999 (Exhibit U); see also Exhibit C.

⁸ Nelson, supra note 2 (Exhibit C).

9 Id.

¹⁰ 487 U.S. 735 (1988).

¹¹ 125 F.3d 865 (D.C. Cir. 1997).

¹² Id. at 869.

¹³ Id.

¹⁴ 320 N.L.R.B. 224 (1995).

¹⁵ Compelled Political Speech: Hearing before the Senate Comm. on Rules & Administration, 106th Cong. (Apr. 12, 2000) (statement of Laurence E. Gold, Associate General Counsel, AFL-CIO at 7-8) [hereinafter Gold Testimony].

¹⁶ Machinists v. NLRB, 133 F.3d 1012 (7th Cir. 1998).

¹⁷ 525 U.S. 813 (1998).

¹⁸ 49 Stat. 449 (1935)) (codified as amended at 29 U.S.C. ßß 151-69 (2000)); 61 Stat. 136 (1947) (codified as amended at 29 U.S.C. §§ 141-97 (2000)).

¹⁹ 44 Stat., Part II 577 (1926) (codified as amended at 45 U.S.C. §§ 151-88 (2000)).

²⁰ Group Health, Inc., 325 N.L.R.B. 342, 346 (1998) (Gould, Chairman, concurring), petition for review denied sub nom. Bloom v. NLRB, No. 97-1582 (Apr. 4, 2000).

²¹ 525 U.S. 33, 53 (1998) (Kennedy, J., concurring) (quoting Bloom v. NLRB, 153 F.3d 844, 850-51 (8th Cir. 1998), vacated, 525 U.S. 1133 (1999)).

²² See Bloom, 153 F.3d at 846. Other reported cases in which union officials attempted to mislead workers about their rights can be cited. See, e.g., Wegscheid v. Auto Workers Local 2911, 117 F.3d 986, 988 (7th Cir. 1997); Schreier v. Beverly Cal. Corp., 892 F. Supp. 225, 226 (D. Minn. 1993).

²³ Harry H. Wellington, Union Fines and Workers Rights, 85 YALE L.J. 1022, 1058 (1976). Reported cases in which union officials failed to inform employees of their options include, e.g., Rochester Mfg. Co., 323 N.L.R.B. 260, 271-72 (1997), affd sub nom. Cecil v. NLRB, 194 F.3d 1311 (table), 1999 WL 970312 (6th Cir. 1999); Paper Workers Local 1033, 320 N.L.R.B. 349, 353 (1995).

²⁴ 29 U.S.C. § 158 (a)(3).

²⁵ See Beverly Health & Rehabilitation Servs., NLRB Case 6-CA-27453, Compl. at 4-6 (Mar. 14, 1996).

²⁶ 487 U.S. 735 (1988).

²⁷ See Service Employees Local 534, 287 N.L.R.B. 1223 (1988), petition for review denied sub nom. North Bay Dev. Disabilities Servs., Inc. v. NLRB, 905 F.2d 476 (D.C. Cir. 1990).

28 See Kidwell v. Transportation Communications Intl Union, 946 F.2d 283, 294-97 (4th Cir. 1991); Farrell v. Fire Fighters, 781 F. Supp. 647, 649 (N.D. Cal. 1992).

²⁹ See NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180 (1967).

³⁰ 320 N.L.R.B. 224, 234-35 (1998), enforced sub nom. Machinists v. NLRB, 133 F.3d 1012 (7th Cir. 1998).

³¹ Gold Testimony, supra note 15, at 8.

³² Machinists, 133 F.3d at 1018.

³³ In April 1996, Luntz Research & Strategic Services released the results of a nationwide survey of union members political attitudes. Seventy-eight percent of the union members polled did not know of their right to get a refund for the portion of your mandatory monthly union dues that is spent on political election activities. An October 1997 poll by John McLaughlin & Associates similarly found that 67.1% of union members are unaware of the Supreme Courts rulings that union members do not have to pay that portion of their dues which are used for political purposes if they request, in writing, that they do not want to pay that portion.

³⁴ 320 N.L.R.B. at 235-36.

³⁵ Shea v. Machinists, 154 F.3d 508, 515 (5th Cir. 1998).

³⁶ Gold Testimony, supra note 15, at 7.

³⁷ Lehnert v. Ferris Faculty Assn, 500 U.S. 507, 521 (1990) (plurality opinion).

³⁸ Machinists v. Street, 367 U.S. 740, 777 (Douglas, J., concurring).

³⁹ Miller v. Air Line Pilots Assn, 108 F.3d 1415, 1422 (D.C. Cir. 1997) (holding that the union could not compel objecting nonmembers to subsidize its lobbying on the subject of airline safety), affd on other grounds, 523 U.S. 866 (1998).

⁴⁰ See Lehnert, 500 U.S. at 527 (opinion of the Court).

⁴¹ Gold Testimony, supra note 15, at 8.

⁴² Id. at 9.

43 Abood v. Detroit Bd. of Educ., 431 U.S. 209, 259 n.13 (1977) (Powell, J., concurring in judgment); see also Regan v. Taxation With Representation, 461 U.S. 540, 546, n.7 (1983) (distinguishing between limits on the use of tax monies and limits on the use of private monies); Buckley v. Valeo, 424 U.S. 1, 91, n.124 (1976) (distinguishing between public financing of campaigns and use of compulsory union dues for political purposes).

⁴⁴ Gold Testimony, supra note 15, at 12.

⁴⁵ See also supra note 33.

⁴⁶ Letter from Chairman Gould to Rep. Tom Lantos (D-Cal.), Oct. 15, 1997, at 5, 7-8.

⁴⁷ See American Fed'n of Tel. & Radio Artists, Portland Local, 327 N.L.R.B. No. 97 (Jan. 28, 1999).

⁴⁸ See In re Weissbach, No. 98-1301 (D.C. Cir. Nov. 24, 1998).

⁴⁹ NLRB Memorandum OM 94-50 (June 13, 1994).

⁵⁰ The General Counsel has unreviewable discretion to refuse to institute unfair labor practice proceedings. Breininger v. Sheet Metal Workers Local 6, 493 U.S. 67, 74 (1989).

⁵¹ NLRB Memorandum GC 98-11, at 5 (Aug. 17, 1998).

⁵² 373 U.S. 113, 122 (1963); accord, e.g., Teachers Local 1 v. Hudson, 475 U.S. 292, 306 (1986).

⁵³ 523 U.S. 866, 878 (1998) (emphasis added).

⁵⁴ 475 U.S. at 306 (emphasis added).

⁵⁵ Id. at 307 n.18 (emphasis added).

⁵⁶ See Teamsters Local 166, 327 N.L.R.B. No. 176, slip op. at 3 (Mar. 23, 1999), petition for review granted sub nom. Penrod v. NLRB, 203 F.3d 41 (D.C. Cir. 2000); see California Saw & Knife Works, 320 N.L.R.B. at 233.

⁵⁷ See California Saw, 320 N.L.R.B. at 240-42; accord Electronic Workers Local 444, 322 N.L.R.B. 1, 2 (1996), petition for review granted sub nom. Ferriso v. NLRB, 125 F.2d 865 (D.C. Cir. 1997). See also supra notes 11-17 and accompanying text.

⁵⁸ See Local 166, 327 N.L.R.B. No. 176, slip op. at 4-5 (local not required to disclose how payments to affiliates are used); American Fedn of Tel. & Radio Artists, Portland Local, 327 N.L.R.B. No. 97, slip op. at 4 n.15, 5 (local not need disclose its own expenditures if it discloses its national affiliates and presumes that its own chargeable percentage is the same) (2-1 decision).

⁵⁹ 487 U.S. 735, 763 (1988) (quoting Ellis v. Railway Clerks, 466 U.S. 435, 448 (1984)).

⁶⁰ 466 U.S. at 451-53.

⁶¹ See Food & Commercial Workers Locals 951, 7 and 1036, 329 N.L.R.B. No. 69, slip op. at 4-9 (Sept. 30, 1999) (4-1 decision), petition for review pending sub nom. Mulder v. NLRB, No. 99-71442 (9th Cir. filed Oct. 8, 1999).

⁶² Beck v. Communications Workers, 468 F. Supp. 87 (motion to dismiss or stay denied), 468 F. Supp. 93 (D. Md. 1979) (motion to dismiss denied, declaratory judgment granted), [1980] Daily Lab. Rep. (BNA) No. 166, at D-1 (Aug. 18, 1980) (special masters report), 106 L.R.R.M. 2323 (1981) (motion to recommit to special master granted), 112 L.R.R.M. 3069 (judgment for plaintiffs), 114 L.R.R.M. 2523 (D. Md. 1983) (judgment modified), affd in part, revd in part, 776 F.2d 1187 (1985), affd en banc, 800 F.2d 1280 (4th Cir. 1986), affd, 487 U.S. 735 (1988).

⁶³ Lehnert v. Ferris Faculty Assn, 556 F. Supp. 309 (1982), (abstention denied), 556 F. Supp. 316 (1983) (protective order denied), 643 F. Supp. 1306 (1986) (judgment entered), 685 F. Supp. 164 (W.D. Mich. 1987) (new trial denied), affd, 881 F.2d 1388 (6th Cir. 1989), affd in part, revd in part, 500 U.S. 507 (1991).

⁶⁴ Miller v. Air Line Pilots Assn, 108 F.3d 1415 (D.C. Cir. 1997), affd, 523 U.S. 866 (1998).

⁶⁵ 367 U.S. 740 (1961).

⁶⁶ Id. at 795-96.

⁶⁷ Id. at 796.

⁶⁸ Since the National Right to Work Legal Defense Foundation was established in 1968, its staff attorneys have litigated all of the major cases in this area of the law. Those cases include Abood, Ellis, Hudson, Beck, Lehnert, Miller, and Marquez. Foundation attorneys have also litigated all but one of the lower court and NLRB cases cited in this document.  For more information on the Foundation, see <http://www.nrtw.org>.

Written Testimony, April 12, 2000

Organized Labor Accountability Project

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