Communications Workers of America v. Beck
Supreme Court of the United States
Argued January 11, 1988 Decided June 29, 1988
Full case name	Communications Workers of America, et al. v. Beck, et al.
Citations	487 U.S. 735 (more) 108 S. Ct. 2641; 101 L. Ed. 2d 634; 1988 U.S. LEXIS 3030; 56 U.S.L.W. 4857; 128 L.R.R.M. 2729
Case history
Prior	468 F. Supp. 93 (D. Md. 1979); 776 F.2d 1187 (4th Circ. 1985), on rehearing en banc, 800 F.2d 1280 (4th Cir. 1986); cert. granted, 482 U.S. 904 (1987).
Holding
Under a union security agreement, unions are authorized by statute to collect from non-members only those fees and dues necessary to perform its duties as a collective bargaining representative.
Court membership
Chief Justice William Rehnquist Associate Justices William J. Brennan Jr. · Byron White Thurgood Marshall · Harry Blackmun John P. Stevens · Sandra Day O'Connor Antonin Scalia · Anthony Kennedy
Case opinions
Majority	Brennan, joined by Rehnquist, White, Marshall, Stevens; Blackmun, O'Connor, Scalia (Parts I and II)
Concur/dissent	Blackmun, joined by O'Connor, Scalia
Kennedy took no part in the consideration or decision of the case.
Laws applied
National Labor Relations Act §8(a)(3)

Communications Workers of America v. Beck, 487 U.S. 735 (1988), is a decision by the United States Supreme Court which held that, in a union security agreement, unions are authorized by statute to collect from non-members only those fees and dues necessary to perform its duties as a collective bargaining representative.^[1] The rights identified by the Court in Communications Workers of America v. Beck have since come to be known as "Beck rights," and defining what Beck rights are and how a union must fulfill its duties regarding them is an active area of modern United States labor law.^{[2][3][4][5][6][7][8][9]}

Background

The union security agreement is a contractual agreement, usually part of a union collective bargaining agreement, in which an employer and a trade or labor union agree on the extent to which the union may compel employees to join the union, and/or whether the employer will collect dues, fees, and assessments on behalf of the union.^[10] Broadly speaking, there are three types of union security agreements:

1. The closed shop, where only union members may be hired, and an employee must remain a union member in order to remain employed;^[10]
2. The union shop, where the employer may hire union or non-union workers, but employees must join the union in order to remain employed; and^[10]
3. The agency shop, where the employer may hire union or non-union workers, and employees need not join the union in order to remain employed. However, the non-union worker must pay a fee to cover collective bargaining costs.^[10]

In the United States, the fee paid by non-union members under the agency shop is known as the "agency fee."^[11][12][13] Where the agency shop is illegal, as is common in labor law governing American public sector unions, a "fair share provision" may be agreed to by the union and the employer. The provision requires non-union employees a pay "fair share fee" to cover the costs of the union's collective bargaining activities. The "fair share" is similar to the agency shop, but usually more restrictive as to what may be charged to the non-member.^[11][12][13]

In the United States, unions established the closed shop, union shop, and agency shop since at least the 1880s.^[14] The National Labor Relations Act (NLRA), the primary federal law governing labor relations in the United States, was enacted in 1935 and formally legalized the closed shop, union shop, or agency shop.^[15] In 1947, however, Congress enacted the Taft-Hartley Act, which amended the NLRA. Title I, Section 101 of the Taft-Hartley Act added a new Section 14 to the NLRA, part (b) of which banned the closed shop:^[15]

Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.^[16]

The Taft-Haftley Act did not, however, outlaw the union shop or agency shop (although it did place some procedural restrictions on their establishment and use).^[15]

During World War II, Congress also banned union political contributions to federal campaigns. The Smith-Connally Act, enacted in 1943, banned the use of union members' dues to make direct contributions to candidates for federal office but did not ban indirect expenditures which educated union members or the public about a candidate's voting record.^[17] The Taft-Hartley Act made the ban permanent.^[18][19][20] In 1948, the U.S. Supreme Court held that the Taft-Hartley Act's ban on use of union dues for political purposes did not extend to internal communications directed at a union's own members.^[21] Eleven years later, the Court refused to consider a federal district court's ruling that Taft-Hartley Act did not ban expenditure of union dues on communications with the public.^[22]

Disputes over the constitutional and statutory status of union shop and agency shop agreements began almost immediately after the passage of the Taft-Hartley Act.^[8] In the Supreme Court's first major ruling on the issue in Railway Employees' Dept. v. Hanson, 351 U.S. 225 (1956),^[23][24] the Court held that the union security provisions of the Railway Labor Act were constitutional,^[23][25] but withheld judgment as to "the validity or enforceability of a union or closed shop agreement if other conditions of union membership are imposed or if the exaction of dues, initiation fees or assessments is used as a cover for forcing ideological conformity or other action in contravention of the First or the Fifth Amendment."^[25][26] The ruling in Hanson appeared to call into serious question the viability of union shop agreements. Five years later, in Machinists v. Street, 367 U.S. 740 (1961), the Court held that the Railway Labor Act "denies the authority to a union, over the employee's objection, to spend his money for political causes which he opposes."^[27] The high court also confronted the issue of remedy in Machinists v. Street, and outlined several options which unions and employers might adopt as well as rejecting remedies which the district court in the case had chosen.^[23][28] The Supreme Court returned to the union security issue three more times in 1963. In NLRB v. General Motors Corp., 373 U.S. 734 (1963), the Court held that agency fees equal to dues are not prohibited by the National Labor Relations Act.^[29][30] Nonetheless, in Retail Clerks v. Schermerhorn, 373 U.S. 746 (1963), the Court questioned whether an agency fee set at a level equal to member dues was unfair because it set collective bargaining fees higher for non-members than for members.^[31] After reargument, however, the Court in Retail Clerks v. Schermerhorn, 375 U.S. 96 (1963), did not reach the issue again and instead decided the case on narrow procedural grounds (concluding that Florida's right-to-work law outlawed the union shop provision at issue).^[32][33] The Court further elaborated on the issue of remedies in Railway Clerks v. Allen, 373 U.S. 113 (1963), allowing agency fee payers to opt out of all political expenditures rather than enunciate specific examples but refusing to allow them to act as a class.^[23][34] The Supreme Court extended its constitutional and equity analysis to public employees in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), holding that, where public employee collective bargaining exists and agency fee clauses are clearly authorized by law, public employee agency fee mechanisms are also constitutional.^{[23][25][35][36]}

Similarly, the National Labor Relations Board (NLRB) had had occasion since 1945 to address the union shop and agency fee issues. Among its key cases was In re Union Starch & Refining Co., 87 NLRB 779, (1949).^[37][38] The Board held in Union Starch that unions were permitted to charge nonmembers agency fees that were nearly equal to full union dues so long as these agency fees were uniform in nature and no additional requirements were made in violation of NLRA Section 8(a)(3)(B) or §8(b)(2).^[38][39] A second important case,^[40] Teamsters Local No. 959, 167 NLRB 1042 (1967), the Board concluded that special assessments or fees could not be part of the agency fee.^[38][41] Reacting to the Supreme Court's ruling in Retail Clerks v. Schermerhorn,^[42] the Board held in Detroit Mailers Union No. 40, 192 NLRB 951 (1971) that certain fraternal activities may be included in the agency fee so long as they are not special assessments.^[38][43] The Board also ruled repeatedly on a number of issues associated with agency fees. It held in several cases that the NLRA does not permit the collection of assessments through the agency fee.^[44] The RLA, in contrast, does.^[45][46] The Board also held that when determining what an assessment is, facts (not labels) matter most.^[45][47]

In the years just before the Supreme Court took up the Beck case, however, it elaborated on its previous agency fee rulings. In Ellis v. Railway Clerks, 466 U.S. 435 (1984), the Supreme Court concluded that the agency fee may only cover those activities directly related to the union's role as a collective bargaining representative. These included national conventions (where dues levels were set and union programs debated and established), social activities (which enhanced union solidarity, especially during negotiations), grievance handling, contract negotiation costs, and union communications, but excluded union organizing activities.^{[23][33][48][49][50]} The Court in Ellis also wrestled with the issue of rebates, and concluded that a union could not simply rebate agency fees to workers for that would essentially constitute a forced, interest-free loan from the worker to the union.^[33][49] In 1985, the Court held in Pattern Makers v. NLRB, 473 U.S. 95 (1985), that a union member may resign at any time without notice.^[51] Thus, Pattern Makers further undermined the union shop by giving workers the right to resign from the union at any time and incur no penalty (such as termination of employment). The Court also crafted additional rules regarding agency fees in Teachers v. Hudson, 475 U.S. 292 (1986). In Teachers, the union had failed to minimize the risk that agency fees might be used for impermissible purposes and had failed to provide agency fee payers with adequate information about how the agency fee was calculated.^[33][49][52] Now the Supreme Court imposed a third requirement, that agency fee payers must be offered a timely, fair, and objective mechanism for challenging the computation of agency fees.^[33][49][52] The Court did uphold, however, the use of interest-bearing escrow accounts for holding disputed dues.^[53]

Despite these many rulings, the Supreme Court had never extended its agency fee rulings to unions covered by the National Labor Relations Act^[54] and many lower courts were confused as to the state of the law.^[55] In 1986, the 2nd Circuit Court of Appeals ruled against non-union workers in a case very similar to Beck involving the United Auto Workers.^[35][56]

Ruling

Associate Justice William J. Brennan, Jr. delivered the opinion of the Court, joined by Chief Justice William Rehnquist and Associate Justices Byron White, Thurgood Marshall, and John Paul Stevens.^[80] Associate Justices Harry Blackmun, Sandra Day O'Connor, and Antonin Scalia joined in Parts I and II.^[80] Justice Blackmun filed a concurring opinion in part and a dissenting opinion in part, in which Justices O'Connor and Scalia joined.^[80] Associate Justice Anthony Kennedy took no part in the consideration or decision of the case.^[80]

The 20 workers sought relief on three claims: 1) That the agency fee was too high to cover only collective bargaining activities as authorized by NLRA Section 8(a)(3); 2) That the high agency fee breached the CWA's duty of fair representation; and 3) That the high agency fee violated the workers' First Amendment rights.^[81]

Justice Brennan first addressed the jurisdictional question that divided the 4th Circuit Court of Appeals and asserted court jurisdiction over both the duty of fair representation and constitutional challenges.^[82]

Brennan next turned to the workers' first two claims. The majority noted that NLRA Section 8(a)(3) contains two provisions which clearly permit agency fee agreements.^[83] For the majority, "The statutory question presented in this case, then, is whether this 'financial core' includes the obligation to support union activities beyond those germane to collective bargaining, contract administration, and grievance adjustment. We think it does not."^[84] The majority reviewed the Court's previous decision in Machinists v. Street and found it controlling.^[84] The majority further concluded that Section 8(a)(3) and Section 2, Eleventh of the Railway Labor Act were statutorily equivalent.^[85] The majority reviewed at length the legislative history of both the Railway Labor Act and the National Labor Relations Act to provide support for this conclusion, and to show why in each case Congress had approved of agency fee agreements.^[86] Relying on the Court's analysis of the Railway Labor Act in Street, the Supreme Court said CWA was not justified in concluding that Section 8(a)(3) permits the collection of agency fees in excess of the amount necessary to cover the costs of collective bargaining.^[87] The majority further found that the legislative history of the NLRA, the Taft-Hartley Act, and the Railway Labor Act (RLA) showed that Congress intended to restrict agency fee agreements to cover collective bargaining alone and no other purposes.^[88]

Turning to the constitutional question, Brennan wrestled with the fact that "...in Railway Employees v. Hanson, 351 U.S. 225 (1956), [the Court held] that because the RLA pre-empts all state laws banning union-security agreements, the negotiation and enforcement of such provisions in railroad industry contracts involves 'governmental action' and is therefore subject to constitutional limitations."^[89] The question before the Court in Beck, then, was whether such governmental action extended to the acts of unions in the private sector where there was no such federal pre-emption. CWA argued that because Section 14(b) of the NLRA permits each state make its own choice in this regard, there could be no federal pre-emption and thus no governmental action.^[89] Brennan concluded for the majority that the Supreme Court need not decide the issue: The Court's doctrine was to rule narrowly on grounds of statutory construction where possible, and that issue had already been decided on statutory grounds in the workers' favor.^[90]

The Supreme Court affirmed the judgment of 4th Circuit Court of Appeals.^[91]

Critiques of the Beck ruling

A number of criticisms have been made of the Beck ruling. These critiques include those made by supporters of the decision who feel the Supreme Court did not go far enough, and critiques made by those who feel the Court's ruling was wrongly decided.

A number of legal scholars who support the outcome of the ruling nonetheless criticize the Supreme Court's approach to Beck's First Amendment challenge.^{[6][7][8][9][30][97][98][99][100][101][102][103][104]} These scholars strongly criticize the Court for not deciding the case on First Amendment grounds, and argue that a constitutional ruling on agency fee issues would provide for clearer decisions, a sounder basis for workers to challenge agency fee calculations, and enhanced free speech rights not only for dissenting workers but for all employees.^{[6][7][8][9][30][97][98][99][100][101][102][103][104]}

A second major criticism of the case is that the Court did not clearly define what the First Amendment violation was. The Supreme Court has a long-standing doctrine of not ruling on a statute's constitutionality if a case may be decided on statutory grounds.^[25] Subsequently, the Beck court's discussion of First Amendment issues was perfunctory, acknowledging that there might be grounds for a First Amendment challenge but refusing to discuss the issue further. This has generated confusion among legal scholars and workers as to what First Amendment challenges may be brought. For example, critics have pointed out that a claim under the First Amendment can only be brought when there is state action, as opposed to private action.^{[55][62][105]} The Supreme Court's early agency fee decisions (Hanson, Street, and Ellis) found that state action occurred under the Railway Labor Act because the Act prohibited union shops.^[55][106] Yet, although the Court went to great lengths to identify the similarities between the RLA and NLRA in Beck, the Court (in dicta) refused to decide whether state action had occurred under the NLRA.^[55] Legal scholars have pointed out that the Beck Court cited two cases which did find state action under the NLRA, but did not make any determination in Beck.^[55] One scholar has concluded that the Court's tests for determining state action are not useful enough to determine the issue.^[62] Adding to the confusion is that the Supreme Court has never made it clear how to apply a First Amendment analysis to labor law. The Court and legal scholars point out that labor law is considered unique in the American statutory and constitutional framework, which may mean that traditional First Amendment analyses do not apply.^{[107][108][109][110][25]} "[T]he Court consistently has upheld the validity...of the Labor Act. In doing so, the Court has repeatedly referred to the special nature of labor legislation to explain its unusual deference to a statute so incompatible with judicially developed constitutional norms."^[25] It may be that the Court's existing standard for assessing government interference with speech (the strict scrutiny standard) is inappopriate to apply to labor law.^{[111][112][113]} Many of these analyses conclude that the Beck court should have clarified these issues, and absent such clarification the First Amendment rights of workers remain unprotected.

Third, some legal scholars have criticized the ruling for not establishing a right which can be successfully exercised in the real world.^[30] The Supreme Court itself recognized in Abood that implementing its limitations on agency fees would be difficult to administer, and in dicta suggested that further rulings would clarify its thinking.^[114] But the Beck decision did not provide this clarification. The ruling did not address whether or how unions should inform workers of their Beck rights, what charges are "germane" to collective bargaining, or what remedies non-members have if their rights are violated.^[30] Because of this confusion, some lower courts have gone so far as to approve schemes whereby union members may assert their Beck rights only during limited "window periods" (in apparent contravention of Pattern Makers) and that Beck objectors renew their objection annually (in apparent contravention of General Motors).^[30][98] A U.S. government report has concluded that it is uncertain whether notifying employees of their Beck rights but not other rights available under the NLRA would effectively protect workers' rights.^[115]

Other observers conclude that Beck was wrongly decided. The reasons for reaching this conclusion vary, however. Some critics, in reviewing the Supreme Court's First Amendment jurisprudence, have found that there is no simply no First Amendment burden imposed by an agency fee which includes charges not related to collective bargaining.^{[116][117][118][119][120]} Others conclude that while there may be some infringement on free speech, the voluntary nature of collective bargaining does not raise it to the level of state action under existing Supreme Court doctrine.^{[62][107][121][122][123][124][125][126][127]} Many conclusions about state action rely on the fact that the NLRA grants unions the right to charge agency fees, thus making the union a state actor.^[62] But scholars critical of Beck point to the Court's ruling in Jackson v. Metropolitan Edison Co., where the Supreme Court held that even a governmental grant of power is insufficient to create state action.^{[62][128][129]} At least one commentator has concluded that the Court's First Amendment analysis in Beck is unbalanced because it fails to take into account the associational liberties also protected by the First Amendment.^[25]

Fifth, some analyses conclude that the Court's method statutory interpretation in the Beck is flawed. Justice Blackmun made this claim in his dissent (as noted above). Some legal commentators agree, noting that the ruling rejects the Court's well-settled doctrines of statutory construction, which leads to a misinterpretation of Congress' legislative intent.^[62][127]

Sixth, critics have argued that the Beck Court misapplied its duty of fair representation doctrine. One legal commentator has concluded that the Supreme Court's duty of fair representation decisions do not lead to the conclusion that agency fees can be restricted solely to collective bargaining purposes.^[130] Another has argued that the modern labor unions can only meet their duty to fairly represent workers if they engage in lobbying and legislative activity,^[131][132] a conclusion which undercuts the Beck court's decision as well.

Seventh, some scholars point out that the Beck ruling may lead to unanticipated outcomes. At least one commentary on Beck concludes that Beck rights, if successfully implemented, may lead large numbers of workers to resign from a union during a strike.^{[5][104][133]} These workers will be able to continue to work during a strike (incurring none of the disadvantages a strike brings), and yet will still be able to enjoy the benefits of collective bargaining (assuming the strike is successful and an agreement is negotiated).^{[104][133][134]} The strike is the most powerful weapon unions have,^[135][136] and undermining the union's ability to strike would put labor unions at a distinct disadvantage in collective bargaining.^{[5][104][133]} The NLRB and Supreme Court have acknowledged the role that agency fee payers can play in undermining strikes. In NLRB v. Textile Workers Union, 409 U.S. 213 (1972), the Supreme Court ruled that once a union member had resigned, the union could not punish that worker for crossing picket lines.^[137] And in Pattern Makers' League v. NLRB, (as noted above) the Court said unions must permit members to resign at any time. Decisions like these have informed the NLRB's rulings on the issue as well. The Board found that an employer did not commit an unfair labor practice when it distributed notices to employees prior to a strike that outlined an employee's rights during a strike (including the right to become an agency fee payer and cross picket lines).^[138] The Board also held that, once a single employee has inquired about their right to become an agency fee payer, it is legal for an employer to notify all workers about this right.^[139] But in the absence of an employee-initiated iniquiry, it is not, the Board says, legal for employers to approach striking workers and ask them to become agency fee payers.^[140] The negative implications of widespread worker resignation from unions prior to or during a strike is clear, some argue.^{[5][104][133]} This may be changing, however, as more unions turn away from strikes and toward comprehensive campaigns.^[13] It is also unclear how Beck may impact dues checkoff (an agreement between the employer, union, and employee under which the employer agrees to deduct union dues directly from the employee's paycheck and turn it over to the union).^[4][141] In 1991, the NLRB held that dues checkoff agreements create an obligation to pay dues in the same way that becoming a union member does.^[142] It is possible that Beck and subsequent rulings could also undermine dues checkoff agreements.^[5]

Impact

See also

• List of United States Supreme Court cases involving the First Amendment
• List of United States Supreme Court cases by the Rehnquist Court

References

Sources

• Berman, Evan M.; Bowman, James S.; West, Jonathan P.; Wart, Montgomery Van (2006). Human Resource Management in Public Service: Paradoxes, Processes, and Problems (2nd ed.). SAGE. ISBN 978-1-4129-0421-6.
• Corrado, Anthony (1997). Campaign Finance Reform: A Sourcebook. Brookings Institution Press. ISBN 978-0-8157-1581-8.
• DelPo, Amy; Guerin, Lisa (2007). The Manager's Legal Handbook (4th ed.). Berkeley, CA: Nolo. ISBN 978-1-4133-0718-4.
• Green, John Clifford (1999). Financing the 1996 Election. M.E. Sharpe. ISBN 978-0-7656-0385-2.
• Green, Mark (2004). Selling Out: How Big Corporate Money Buys Elections, Rams Through Legislation, and Betrays Our Democracy. Harper Collins. ISBN 978-0-06-073582-1.
• Holley, William H.; Jennings, Kenneth M.; Wolters, Roger S. (2008). The Labor Relations Process. Cengage Learning. ISBN 978-0-324-42144-6.
• Kearney, Richard C.; Mareschal, Patrice M. (2000). Labor Relations in the Public Sector (3rd ed.). CRC Press. ISBN 978-0-8247-0420-9.
• Mauer, Michael (2001). The Union Member's Complete Guide: Everything You Want—and Need—to Know About Working Union. Union Communication Services. ISBN 978-0-9659486-1-6.
• Pynes, Joan E. (2004). Human Resources Management for Public and Nonprofit Organizations. Wiley. ISBN 978-0-7879-7078-9.
• Rees, Albert (1989). The Economics of Trade Unions. University of Chicago Press. ISBN 978-0-226-70710-5.

External links

• Text of Communications Workers of America v. Beck, 487 U.S. 735 (1988) is available from: CourtListener  Findlaw  Google Scholar  Justia  Library of Congress  Oyez (oral argument audio) 
• Agency Fee/Fair Share Information from the American Federation of Teachers
• Sample Beck notice from the United Auto Workers