BOSTON (CN) — The First Circuit appeared highly conflicted Wednesday as to whether private-sector unions can ever force members to subsidize lobbying.
Appearing skeptical of the National Labor Relations Board’s holding that lobbying is not germane to a union’s legal duty to represent workers, U.S. Circuit Judge Bruce Selya emphasized in oral arguments this morning that “lobbying activity is not monolithic.”
“I can imagine that some lobbying activity might be germane, and I’m concerned that a per se rule would prevent that,” Selya added.
Another member of the panel in Boston to cast down on the NLRB decision was U.S. Circuit Judge William Kayatta Jr.
Simply saying that lobbying is never germane “doesn’t sound like reasoning,” said Kayatta, who was appointed by President Obama. “It’s just ipse dixit.”
But when the court then tried to come up with a rule as to what specific types of lobbying were germane, it struggled.
Christopher Callaci, general counsel for the nurses’ union in this case, pointed to lobbying for a bill that would provide increased state funding for hospitals that would go directly to the nurses.
The example struck a nerve, however, with Selya.
“That opens up a loophole large enough to drive a Mack truck through,” the 85-year-old Reagan appointee complained. “That can’t possibly be the test in my view.”
Glenn Taubman, staff attorney for the National Right to Work Legal Defense and Education Foundation, notes that the case could potentially apply to every private-sector union in the country.
“Virtually every private-sector union has at least one dissenting member,” Taubman said in an interview with Courthouse News.
The United Nurses & Allied Professionals union represents 15 bargaining units at private facilities in Connecticut, Rhode Island and Vermont. It had charged employees for lobbying for seven bills, two of which would have increased state funding for hospitals. The others would have increased state hospital regulation, required safer patient-handling practices, prohibited mandatory overtime for nurses and improved nurse pensions.
Taubman’s group represents nurse Jeanette Geary who raised an objection.
Before the case went to the First Circuit, a dissenting judge at the NLRB argued against the categorical prohibition on lobbying expenses.
Saying it should be OK to charge members for lobbying that is germane to collective bargaining, contract administration or handling grievances, the dissenter said, the union could charge members for the lobbying to increase state funding since it could result in a more favorable contract.
Other bills were outside the scope, the dissenter said, since they didn’t relate directly to any issues that were the subject of the union’s collective bargaining.
Much of the hearing Wednesday consisted of the judges posing hypotheticals to try to figure out what kinds of lobbying might be germane.
“What about a bill to increase the minimum wage?” Kayatta asked. “Would that be germane if a lot of union workers earned the minimum?”
“I’m really uncomfortable speculating about that,” answered Callaci.
“Suppose, in this era of the coronavirus, the union sat down with a maker of masks to find a way to better protect nurses?” Selya asked Milakshmi Rajapakse, who represented the NLRB.
“I can’t say for certain,” she replied.
“What could be more germane?” Selya wondered.
Kayatta continued this line of thought: “What if the union wants a rule that nurses over 60 don’t have to handle coronavirus patients, and the hospital says no, and the union goes to the legislature?”
Rajapakse noted that some nurses might disagree with the union’s position. “Congress did not want ideological conformity,” she said.
Kayatta got Callaci to admit that cases where private-sector workers had to pay for lobbying would likely be unusual. “So why not have a bright-line rule rather than getting into messy litigation over specific types of lobbying?” he asked.
Taubman picked up on this practical argument, noting the difficulty of complex litigation over small amounts of money. “My client has been litigating for 10 years to get back maybe $30,” he observed.
A separate issue in the case is whether a union has to provide members with an independent auditor’s letter showing how the union funds were spent. The nurses’ union summarized the results of a CPA’s letter but didn’t provide the letter itself. The NLRB said the union had to provide the full letter.
The judges had little patience with the union on this score.
“Show them the letter,” Selya said. “Why should they have to take your word for things?”
Callaci claimed that providing the letter could lead to further litigation, but Kayatta said the opposite was the case. “If a member wants to see the letter, and it costs the union nothing to provide it, and the union says no, I can see how a member might think, well, maybe there is no such letter,” he said.
Retired U.S. Supreme Court Justice David Souter rounded out the panel. Souter did not speak at all and kept a poker face throughout the argument.