November 24, 2007

Romney, the Courts, and the Constitutions: Part 4 — What’s Beck Got to Do with It?

Filed under: Taxes & Government — Tom @ 11:06 pm

June 29, 1988 was touted as a great day for personal freedom and a really bad day for organized labor. Many thought it marked the end of an era. It’s important to understand exactly why it didn’t.

June 29, 1988 was the day that Communications Workers of America v. Beck was decided, in favor of Mr. Beck and others who joined him on his side of the action. The ruling’s key finding:

The courts below properly exercised jurisdiction over respondents’ claims that exactions of agency fees beyond those necessary to finance collective-bargaining activities violated the judicially created duty of fair representation and respondents’ First Amendment rights.

Translated, this means that Beck and the others who joined him in the suit were entitled to a retroactive refund of 79% of the union dues they had been paying for over a decade, because, in agreeing with the lower courts, the Supreme Court said that:

….. the union had failed to show that more than 21% of its funds were expended on collective-bargaining matters. ….. The court ordered reimbursement of all excess fees respondents had paid since January 1976, and directed the union to institute a recordkeeping system to segregate accounts for representational and noncollective-bargaining activities.

The New York Times’s Stuart Taylor, in covering the decision, wrote:

In a major defeat for most private-sector labor unions, the Court ruled, 5 to 3, that the National Labor Relations Act bars the long-standing practice of requiring nonmembers covered by collective bargaining agreements to pay “agency fees” equal to full union dues. It said nonmembers may be required to help pay only for activities related to collective bargaining, not for unions’ political advocacy or organizing activities. (Communications Workers v. Beck, No. 86-637.)

So, shortly thereafter, unions across America, acting out of fear of the Supremes’ enforcement powers, voluntarily complied with the ruling, reduced their dues to only the amounts needed for collective bargaining and administration, and order was restored in the world.

Uh, not exactly.

As anyone who has followed politics in the 19 years since surely knows, political contributions from unions, forcibly extracted from members usually without their explicit permission, still exert a great deal of influence over politics.

Oh, I’m pretty confident in saying that Beck and his fellow workers who went up against the CWA got their money back and had their dues withholding reduced after that. After all, it was their case that the Supremes decided.

But, it appears, that was it. As was the case with Massachusetts and its ending of slavery in discussed in Part 1, the only value of the Beck decision in and of itself is that it gave individual workers, or particular groups of workers, the ability to sue on their own to get their politics-related dues money back and to avoid paying politics-related dues in the future, with a great degree of certainty that they would get a ruling favoring their position because of the Beck ruling.

That’s all? As far as I can tell, that’s all.

Shouldn’t it mean more than that? Well, no, because the unions and their lawyers apparently knew something, and still know something, that most other don’t know, or won’t acknowledge: A Supreme Court “decision” is really a “ruling,” which is really just a “statement of belief” with no enforcement ramifications beyond the case in front of it that it has just decided.

In the intervening 19 years, Congress has passed no law to implement the “ruling” in Beck. This link from early 2005 notes that as of that time three states had passed laws conforming with Beck that were enforceable on both union and non-union members, and that six other states were attempting to pass analogous legislation. Additionally, I believe a few states, Washington being one, have passed Beck-like ballot initiatives since the Supremes’ “ruling” that are meant to be binding on some or all unionized workers.

It appears that in the roughly 40 remaining states, if you are a union member, or a non-member in an agency shop situation, and you are being forced to dues amounts that include monies that end up going towards political contributions, you have to bring an action on your own to stop the practice. Based on Beck, you should win, but it’s up to you to do something.

Here have been the presidential responses to Beck:

President George H. W. Bush issued Executive Order 12800 in April 1992 requiring federal contractors to inform workers of their Beck rights by posting notices in the workplace. President Clinton rescinded the executive order in 1993 within days of taking office. President Clinton’s Secretary of Labor labeled the executive order “a burden without a benefit,” apparently with the view that informing workers of a constitutional right is of no benefit to the workers.

Similarly, under President George H. W. Bush, the Department of Labor issued a proposed rule requiring unions to report expenditures according to how the funds were spent. More specific reporting would make it easier for workers to determine how much money was spent for collective bargaining as compared to political activities, lobbying, organizing, and other activities which workers exercising their Beck rights cannot be compelled to fund. As with the executive order, the proposed rule did not survive the opening days of the Clinton Administration.

On February 17, 2001, President George W. Bush issued Executive Order 13201 requiring federal contractors to post a workplace notice informing employees of their rights under the Beck decision. The order affects only a relatively small number of the approximately twelve million American workers forced to pay union dues as a condition of employment. Three unions and a union-established corporation filed suit in response to the executive order. Their complaint alleged that requiring notice of workers’ Beck rights would impose “substantial administrative burdens” on businesses.

Note that none of the Executive Orders are or were direct enforcement actions.

Further, Bill Clinton, while in office, insisted that he would not undertake to enforce Beck, and stood around while the National Labor Relations Board frequently engaged in actions designed to discourage the effects of the Beck ruling.

But you know what?

Bill Clinton and his NLRB were perfectly within his rights to do what they did, because there was no law telling the Executive Branch, its bureaucrats, unions, or workers how Beck was to be implemented.

The Supremes’ Beck decision, you see, was not a law, and did not in and of itself have the force of law, except on the parties in the litigation itself.

As was the case in the recent situations in Massachusetts covered in Parts 1, 2, and 3 involving government-subsidized abortion and same-sex marriage, a ruling by the highest court does not create a law (a Supreme Court ruling that throws out a law may, I believe, be a different matter). In the states where “Beck Laws” don’t exist, until a law conforming with the court’s ruling is passed and signed by the state’s or federal government’s chief executives, the Beck ruling has no impact unless a private litigant brings a new action on his or her own. None.

Is this clear? I hope so, because this reality may be about to hit our next president, whomever he or she may be, right between the eyes. How he or she deals with it will have profound implications on whether this country moves back towards the rule of law or descends further into rule by whim.

That will be covered in Part 5.

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