OFFICE OF THE GENERAL COUNSEL

MEMORANDUM GC 01-04                                                        April 6, 2001

TO:                  All Regional Directors, Officers-in-Charge, and

  Resident Officers

FROM:            Leonard R. Page, Acting General Counsel

                       

SUBJECT:            Guidelines for Response to Beck-Related Public Inquiries

We anticipate, based on President Bush’s February 17, 2001 Executive Order, that there may be an increased number of public inquiries concerning Beck and related union-security issues.  To assist the public in understanding these matters, we have prepared the attached reference guide consisting of proposed responses to typical inquiries.  This material is designed as a guide for information officers in responding to such inquiries and will help ensure that the Agency is providing accurate and complete information to the public concerning this topic.

Copies of this guide are being placed on the NLRB Field Offices electronic bulletin board, and on the NLRB intranet and website.  Each person who serves as information officer should be familiar with the contents.

Since this reference guide does not purport to identify and address all possible questions which may arise in this area, Regions may wish to expand upon it as deemed appropriate.  However, the Regions should coordinate any such expansion or addition with the Division of Advice to ensure that the Regions’ views are consistent with positions taken by the Office of the General Counsel.

Any questions concerning this should be directed to the Division of Advice or your Assistant General Counsel.

                                                                            /s/

                                                                        L. R. P.

Attachment

Distribution:                                                              

  Regional - All Professional Employees, NLRBU

cc:   NLRBU

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QUESTIONS AND ANSWERS ON TYPICAL
UNION-SECURITY AND BECK ISSUES

Following is a series of typical questions and answers which may be posed to Board agents concerning the Supreme Court’s decision in Communications Workers of America v. Beck, 487 U.S. 735 (1988), or other issues relating to union-security obligations.

This material is designed to serve as a desk reference in responding to public inquiries.  As always, if there is any uncertainty about how to respond to a public inquiry, the Board agent should secure a phone number from the caller and call back after consulting with a supervisor to obtain the necessary information.

1.   What is a union-security obligation?

The proviso to Section 8(a)(3) of the Act allows employers and unions to enter into union-security agreements requiring all employees in a particular bargaining unit to become “members” on or after the 30^th day following being hired.[1]  In a 1963 decision, NLRB v. General Motors Corporation, 373 U.S. 734, 53 LRRM 2313, the Supreme Court held that the term “member” requires only the payment of periodic dues and fees as opposed to full membership.  Since the Court noted that “the membership that is required has been whittled down to its financial core”[2], individuals choosing that approach are often referred to as “financial core members.”  Thus, under current law, no one has to be a member of a union in order to maintain a job, but all employees subject to a union security obligation can be required to pay union dues and fees.  The Board in Paperworkers Local 1033 (Weyerhauser Paper Co.), 320 NLRB 349 (1995), held that a union must give employees notice of their General Motors rights before seeking to obligate employees under a union-security clause.

A number of states have exercised their option under Section 14(b) of the Act to pass legislation outlawing union-security agreements.  Such legislation is commonly referred to as a “right-to-work” law.  States currently having such laws include: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Iowa, Kansas, Louisiana (agricultural workers only), Mississippi, Nebraska, Nevada, North Carolina, North Dakota, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia and Wyoming.  Employees working in states with “right-to-work” laws cannot be required to pay union dues and fees under a so-called "union-shop" clause, unless they are employed on a federal enclave.

2.   What did the Supreme Court hold in Beck?

     In Communications Workers of America v. Beck, 487 U.S. 735 (1988), the Supreme Court held that the proviso to Section 8(a)(3) of the Act, which allows employers and unions to enter into union-security agreements, does not “permit a union, over the objections of dues-paying nonmember employees, to expend funds so collected [pursuant to a union-security clause] on activities unrelated to collective bargaining, contract administration or grievance adjustment.”  The Court also concluded that “such expenditures violate the union’s duty of fair representation.”

3.   What are an employee’s rights and a union’s obligations under Beck?

     In order to be eligible for Beck rights, an employee (1) must be a nonmember and (2) must be covered by a union-security clause in a collective-bargaining agreement.  

     In general terms, a union’s obligations under Beck are to provide notice to nonmember employees of their Beck rights; to refrain from charging objectors for nonrepresentational expenses; to provide objectors with a financial disclosure; and to establish procedures for objectors to challenge the accuracy of the union’s disclosure.

Initial Notice

A union’s initial obligation under Beck is to inform the employee that he has the right to be or remain a nonmember, subject only to the duty to pay initiation fees and dues,[3] and that nonmembers have the right (1) to object to paying for union activities not germane to the union’s duties as bargaining agent and to obtain a reduction in fees for such activities; (2) to be given sufficient information to enable the employee to intelligently decide whether to object; (3) to be apprised of any internal union procedures for filing objections.[4] 

This initial Beck notice must be given at or before the time the union first seeks to obligate a nonmember employee under the terms of the union-security agreement.[5]  In addition, a union member employee must be provided with an initial Beck notice if he did not receive notice at the time he entered the bargaining unit.[6]  The initial notice requirement is satisfied by giving the unit employee notice once and is not a continuing requirement.[7]  The Board does not require the initial Beck notice to be in any particular form as long as the union has made reasonable efforts to notify employees of their Beck rights.[8]

Treatment of “objectors”

     A union has no further obligation under Beck until a nonmember employee objects to paying that portion of dues which covers nonrepresentational expenses.  Such employees are often referred to as “objectors.”  Generally, a union may require that objections be sent to the union during a specified annual “window period.”[9]  However, a union cannot require that objections be sent by registered or certified mail, or that employees mail objections individually rather than consolidating several objections in one envelope.[10] 

Once a nonmember employee “objects,” a union must refrain from charging him for that portion of dues which is expended for nonrepresentational functions.  The union must also apprise the objector of the percentage of reduction in fees for objecting nonmembers, the basis for the union’s calculation, and the right to challenge these figures.[11]  The information the union provides to an objector must be sufficient to enable the objector to determine whether to challenge the union’s allocations.[12]  Thus, a union must provide a summary of major categories of “chargeable” and “nonchargeable” expenditures, but need not provide detailed supporting schedules.[13]  In addition, the union must verify by audit that the expenditures claimed were actually made.[14] 

Challenge

     An objector may challenge the union’s allocation of representational and nonrepresentational expenditures. A union must provide “reasonable procedures” enabling objectors to file such challenges.[15]  A union’s challenge procedure must not be arbitrary, discriminatory, or administered in bad faith.[16]

     The above is, of necessity, a general description of an employee’s rights and a union’s obligations under Beck.  It is beyond the scope of this reference guide to cover the many issues which may arise with respect to these obligations.  Issues concerning any of the above procedures may be raised in the form of appropriate unfair labor practice charges.

4.   What expenses are “nonrepresentational?”

     In Beck, the Court held that Section 8(a)(3) does not permit unions to expend funds, over the objection of the nonmember employees, on activities “unrelated to collective bargaining, contract administration and grievance adjustment.”  The Board and courts must determine, in contested cases, which specific functions fall within these categories.  Generally, expenses incurred for activities within the objector's bargaining unit are chargeable if they are “germane” to the union’s representational role.  Expenses attributable to activities outside the objector’s bargaining unit – “extra-unit” expenses – may be charged if, in addition to being “germane” to the union’s representational role, they are incurred for services that may ultimately inure to the benefit of the members of the local union by virtue of their membership in the parent organization.[17]

     The Board has held that organizing expenses may be charged to Beck objectors, at least to the extent the organizing is within the same competitive market as that of the bargaining unit employer.[18]  The Board has found that “economists generally agree that there is a positive relationship between the extent of unionization of employees in an industry or locality and negotiated wage rates.”[19] 

     The Office of the General Counsel has taken the position that lobbying expenses generally are nonrepresentational.  The Board has not yet determined whether lobbying expenses are representational or nonrepresentational.[20]  With regard to a union’s litigation expenses, the Board has held that they might be considered representational if they are germane to the union’s role in collective bargaining, contract administration and grievance settlement.[21]

     Employees believing that any aspect of a union’s Beck policies are unlawful may, as always, raise this issue by filing an unfair labor practice charge.

5.   What if a union seeks the discharge of an employee for nonpayment of dues, where the union has not complied with its Beck or General Motors obligations?

     If a union requests that an employer discharge an employee for alleged nonpayment of dues without the union having afforded Beck or General Motors rights, the union’s action may violate Section 8(b)(1)(A) and 8(b)(2) of the Act.  The employee may file an appropriate unfair labor practice charge.

6.   What did President Bush’s February 17, 2001 Executive Order provide?

     The Executive Order, a copy of which is attached, requires all federal agencies to begin including in their contracts a provision obligating the contracting employer to post workplace notices informing employees of Beck rights.  The Order will be effective April 18, 2001, and will be administered by the Department of Labor.

7.   What if the employer or the employee is not covered by the NLRA?

     The Executive Order covers not only employees who are covered by the NLRA but also those who may be covered by the Railway Labor Act (RLA).  As usual, inquiries by employees covered under the RLA should be referred to the nearest office of the National Mediation Board. 

8.   What if an employee inquires whether he or she may resign from a union, despite restrictions on such resignations in the union’s constitution or by-laws?

     The Supreme Court held, in a 1985 case, Pattern Makers League v. NLRB (Rockford-Beloit Pattern Jobbers), 473 U.S. 95, that an employee is free to resign from “full” union membership at any time.  You should inform the employee that any resignation should be made in such a way so as to leave no doubt of intent.  The employee should also be advised of his/her right to file a charge with respect to any action by the union to prevent the resignation.  Similarly, the employee has the option of challenging, through an unfair labor practice charge, the legality of any restriction in the union constitution or by-laws concerning resignation.

9.   What if an employee advises you that his religion prevents him/her from joining a labor organization and inquires whether he/she is still required to pay union-security dues?

     Section 19 of the Act[22] provides that “any employee who is a member of and adheres to established and traditional tenets...or teachings of a bona fide religion, body or sect which has historically held conscientious objections to joining or financially supporting labor organizations shall not be required to join or financially support any labor organization as a condition of employment....”  However, Section 19 also provides that such employees may be required, in lieu of periodic dues, to pay sums equal to such dues to a “nonreligious, nonlabor organization charitable fund exempt from taxation under...the Internal Revenue Code chosen by the employee from a list of at least three such funds designated in the contract or if the contract fails to designate such funds then to any such fund chosen by the employee.”

     The Office of the General Counsel has not yet considered whether Beck has any impact on Section 19.  Those wishing to raise that or any other issue concerning Section 19 may, as always, do so by filing an unfair labor practice charge.

EXECUTIVE ORDER

NOTIFICATION OF EMPLOYEE RIGHTS CONCERNING PAYMENT OF UNION DUES OR FEES

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act, 40 U.S.C. 471 et seq., and in order to ensure the economical and efficient administration and completion of Government contracts, it is hereby ordered that:

Section 1. (a) This order is designed to promote economy and efficiency in Government procurement. When workers are better informed of their rights, including their rights under the Federal labor laws, their productivity is enhanced. The availability of such a workforce from which the United States may draw facilitates the efficient and economical completion of its procurement contracts.

(b) The Secretary of Labor (Secretary) shall be responsible for the administration and enforcement of this order. The Secretary shall adopt such rules and regulations and issue such orders as are deemed necessary and appropriate to achieve the purposes of this order.

Sec. 2. (a) Except in contracts exempted in accordance with section 3 of this order, all Government contracting departments and agencies shall, to the extent consistent with law, include the following provisions in every Govern-ment contract, other than collective bargaining agreements as defined in 5 U.S.C. 7103(a)(8) and purchases under the "Simplified Acquisition Threshold" as defined in the Office of Federal Procurement Policy Act (41 U.S.C. 403).

1. During the term of this contract, the contractor agrees to post a notice, of such size and in such form as the Secretary of Labor shall prescribe, in conspicuous places in and about its plants and offices, including all places where notices to employees are customarily posted. The notice shall include the following information (except that the last sentence shall not be included in notices posted in the plants or offices of carriers subject to the Railway Labor Act, as amended (45 U.S.C. 151-188)):

NOTICE TO EMPLOYEES

Under Federal law, employees cannot be required to join a union or maintain membership in a union in order to retain their jobs. Under certain conditions, the law permits a union and an employer to enter into a union-security agree-ment requiring employees to pay uniform periodic dues and initiation fees. However, employees who are not union members can object to the use of their payments for certain purposes and can only be required to pay their share of union costs relating to col-lective bargaining, contract administration, and grievance adjustment.

"If you do not want to pay that portion of dues or fees used to support activities not related to collective bargaining, contract administration, or grievance adjustment, you are entitled to an appropriate reduction in your payment. If you believe that you have been required to pay dues or fees used in part to support activities not related to collective bargaining, contract administration, or grievance adjustment, you may be entitled to a refund and to an appropriate reduction in future payments.

"For further information concerning your rights, you may wish to contact the National Labor Relations Board (NLRB) either at one of its Regional offices or at the following address:

National Labor Relations Board
Division of Information
1099 14th Street, N.W.
Washington, D.C. 20570

"To locate the nearest NLRB office, see NLRB's website at www.nlrb.gov 

"2. The contractor will comply with all provisions of Executive Order _(number as provided by the Federal Register)_ of February 17, 2001, and related rules, regulations, and orders of the Secretary of Labor.

"3. In the event that the contractor does not comply with any of the requirements set forth in paragraphs (1) or (2) above, this contract may be cancelled, terminated, or suspended in whole or in part, and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in or adopted pursuant to Executive Order (number as provided by the Federal Register) of February 17, 2001. Such other sanctions or remedies may be imposed as are provided in Executive Order (number as provided by the Federal Register) of February 17, 2001, or by rule, regulation, or order of the Secretary of Labor, or as are otherwise provided by law.

"4. The contractor will include the provisions of paragraphs (1) through (3) herein in every subcontract or purchase order entered into in connection with this contract unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 3 of Executive Order (number as provided by the Federal Register) of February 17, 2001, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any such subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions, including the imposition of sanctions for non-compliance: Provided, however, that if the contractor becomes involved in litigation with a subcontractor or vendor, or is threatened with such involvement, as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States."

(b) Whenever, through Acts of Congress or through clarification of existing law by the courts or otherwise, it appears that contractual provisions other than, or in addition to, those set out in subsection (a) of this section are needed to inform employees fully and accurately of their rights with respect to union dues, union-security agreements, or the like, the Secretary shall promptly issue such rules, regulations, or orders as are needed to cause the substitution or addition of appropriate contractual provisions in Government contracts thereafter entered into.

Sec. 3. (a) The Secretary may, if the Secretary finds that special circumstances require an exemption in order to serve the national interest, exempt a contracting department or agency from the requirements of any or all of the provisions of section 2 of this order with respect to a particular contract, subcontract, or purchase order.

(b) The Secretary may, by rule, regulation, or order, exempt from the provisions of section 2 of this order certain classes of contracts to the extent that they involve (i) work outside the United States and do not involve the recruitment or employment of workers within the United States; (ii) work in jurisdictions where State law forbids enforcement of union-security agreements; (iii) work at sites where the notice to employees described in section 2(a) of this order would be unnecessary because the employees are not represented by a union; (iv) numbers of workers below appropriate thresholds set by the Secretary; or (v) subcontracts below an appropriate tier set by the Secretary.

(c) The Secretary may provide, by rule, regulation, or order, for the exemption of facilities of a contractor, subcontractor, or vendor that are in all respects separate and distinct from activities related to the performance of the contract: Provided, that such exemption will not interfere with or impede the effectuation of the purposes of this order: And provided further, that in the absence of such an exemption all facilities shall be covered by the provisions of this order.

Sec. 4. (a) The Secretary may investigate any Government contractor, subcontractor, or vendor to determine whether the contractual provisions required by section 2 of this order have been violated. Such investigations shall be conducted in accordance with procedures established by the Secretary.

(b) The Secretary shall receive and investigate complaints by employees of a Government contractor, subcontractor, or vendor where such complaints allege a failure to perform or a violation of the contractual provisions required by section 2 of this order.

Sec. 5. (a) The Secretary, or any agency or officer in the executive branch of the Government designated by rule, regulation, or order of the Secretary, may hold such hearings, public or private, regarding compliance with this order as the Secretary may deem advisable.

(b) The Secretary may hold hearings, or cause hearings to be held, in accordance with subsection (a) of this section prior to imposing, ordering, or recommending the imposition of sanctions under this order. Neither an order for debarment of any contractor from further Government contracts under section 6(b) of this order nor the inclusion of a contractor on a published list of noncomplying contractors under section 6(c) of this order shall be carried out without affording the contractor an opportunity for a hearing.

Sec. 6. In accordance with such rules, regulations, or orders as the Secretary may issue or adopt, the Secretary may:

(a) after consulting with the contracting department or agency, direct that department or agency to cancel, terminate, suspend, or cause to be cancelled, terminated, or suspended, any contract, or any portion or portions thereof, for failure of the contractor to comply with the contractual provisions required by section 2 of this order; contracts may be cancelled, terminated, or suspended absolutely, or continuance of contracts may be conditioned upon future compliance: Provided, that before issuing a directive under this subsection, the Secretary shall provide the head of the contracting department or agency an opportunity to offer written objections to the issuance of such a directive, which objections shall include a complete statement of reasons for the objections, among which reasons shall be a finding that completion of the contract is essential to the agency's mission: And provided further, that no directive shall be issued by the Secretary under this subsection so long as the head of the contracting department or agency continues personally to object to the issuance of such directive;

(b) after consulting with each affected contracting department or agency, provide that one or more contracting departments or agencies shall refrain from entering into further contracts, or extensions or other modifications of existing contracts, with any noncomplying contractor, until such contractor has satisfied the Secretary that such con-tractor has complied with and will carry out the provisions of this order: Provided, that before issuing a directive under this subsection, the Secretary shall provide the head of each contracting department or agency an opportunity to offer written objections to the issuance of such a directive, which objections shall include a complete statement of reasons for the objections, among which reasons shall be a finding that further contracts or extensions or other modifications of existing contracts with the noncomplying contractor are essential to the agency's mission: And provided further, that no directive shall be issued by the Secretary under this subsection so long as the head of a contracting department or agency continues personally to object to the issuance of such directive; and

(c) publish, or cause to be published, the names of contractors that have, in the judgment of the Secretary, failed to comply with the provisions of this order or of related rules, regulations, and orders of the Secretary.

Sec. 7. Whenever the Secretary invokes section 6(a) or 6(b) of this order, the contracting department or agency shall report the results of the action it has taken to the Secretary within such time as the Secretary shall specify.

Sec. 8. Each contracting department and agency shall cooperate with the Secretary and provide such information and assistance as the Secretary may require in the performance of the Secretary's functions under this order.

Sec. 9. The Secretary may delegate any function or duty of the Secretary under this order to any officer in the Department of Labor or to any other officer in the executive branch of the Government, with the consent of the head of the department or agency in which that officer serves.

Sec. 10. The Federal Acquisition Regulatory Council (FAR Council) shall take whatever action is required to implement in the Federal Acquisition Regulation (FAR) the provisions of this order and of any related rules, regulations, or orders of the Secretary that were issued to implement this Executive Order. The FAR Council shall amend the FAR to require each solicitation of offers for a contract to include a provision that implements section 2 of this order.

Sec. 11. As it relates to notification of employee rights concerning payment of union dues or fees, Executive Order 12836 of February 1, 1993, which, among other things, revoked Executive Order 12800 of April 13, 1992, is revoked.

Sec. 12. The heads of executive departments and agencies shall revoke expeditiously any orders, rules, regulations, guidelines, or policies implementing or enforcing Executive Order 12836 of February 1, 1993, as it relates to notification of employee rights concerning payment of union dues or fees, to the extent consistent with law.

Sec. 13. This order is intended only to improve the internal management of the executive branch and is not intended to, nor does it, create any right to administrative or judicial review, or any right, whether substantive or procedural, enforceable by any party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.

Sec. 14. The provisions of this order shall apply to contracts resulting from solicitations issued on or after the effective date of this order.

Sec. 15. This order shall become effective 60 days after the date of this order.

GEORGE W. BUSH

THE WHITE HOUSE,
February 17, 2001.