Unions Dealt Major Blow With 1st Circuit Ruling on Lobbying Dues

People gather at the Supreme Court awaiting a decision in an Illinois union dues case, Janus vs. AFSCME, in Washington on June 25, 2018. (AP Photo/J. Scott Applewhite)

BOSTON (CN) — Private-sector unions can’t force employees to contribute toward lobbying activities, the First Circuit ruled Tuesday, the latest court defeat for labor organizers since a major Supreme Court loss in 2018.

Glenn Taubman, staff attorney for the National Right to Work Legal Defense and Education Foundation, predicted in an interview that the court’s reasoning could apply to every private-sector union in the country.

“Virtually every private-sector union has at least one dissenting member,” said Taubman, who represented Jeannette Geary and other nurses at odds with their union representatives.

Tuesday’s ruling backs a determination for Geary delivered last year by the National Labor Relations Board, an entity that has seen something of a rightward tilt now that a majority of its members are Trump appointees.  

Back in 2018, the Supreme Court held that public-sector unions can’t force dissenting employees to contribute to them at all, because this would violate the First Amendment. That 5-4 decision overruled more than 40 years of precedent. 

But the First Amendment doesn’t apply in the private sector, where a union-security agreement can force dissenters to pay for union activities that relate to collective bargaining, contract administration or handling grievances. 

As the First Circuit ruled Tuesday, however, lobbying doesn’t fall into any of those categories. 

Writing for a unanimous three-judge panel, U.S. Circuit Judge William Kayatta, an Obama appointee, noted that the Supreme Court has at least suggested that political activities are off-limits.

And “we see no convincing argument that legislative lobbying is not a ‘political’ activity,” Kayatta wrote.

According to the Bureau of Labor Statistics, some 7.1 million private-sector workers belong to a union, or about 6.2% of all private-sector employees.

Geary’s former union, the United Nurses & Allied Professionals, charged employees for lobbying work on 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. 

At oral argument, the judges seemed sympathetic to the idea that at least some types of lobbying — particularly the efforts in this case to increase state hospital funding which would presumably help nurses to demand higher wages — could advance collective bargaining. Where they had trouble, however, was finding a bright-line test. 

“We do agree with the union that there is no conceptual reason for concluding that lobbying by a private-sector union could never be necessary to the union’s performance of its collective bargaining duties,” Kayatta wrote. “In theory, there exist instances in which an expense could reasonably be called both a form of lobbying and germane to collective bargaining.” 

But Kayatta concluded that the exceptions were so rare and the potential litigation so onerous that it was better to simply have a blanket ban. 

The exceptions “would apply with little frequency, and would come with no easy-to-apply objective measure,” the ruling states. As a result, the transaction costs of establishing the chargeability of such expenses would likely outweigh the amounts involved.  

“Furthermore, in the ordinary case, the dissenting employees would lack the resources to press their objections,” Kayatta wrote. “Unions, in turn, would be tempted to press the margins, figuring that sustained opposition might be unlikely. There is thus a certain practicality to drawing a brighter line.” 

Taubman agreed. “My client has been litigating for 10 years to get back maybe $30” in dues, he observed. 

Kayatta’s unanimous 22-page opinion was joined by U.S. Circuit Judge Bruce Selya, a Reagan appointee, and former Supreme Court Justice David Souter.

The union challenger represents 15 bargaining units at private facilities in Connecticut, Rhode Island and Vermont.

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