This article first appeared in The Detroit News on March 26, 1998.
Employees in Michigan's highly unionized workforce will be flying high if the U.S. Supreme Court sides with Delta Air Lines pilots who are demanding accountability from their workplace union. The pilots' pending case, Air Line Pilots Association v. Robert A. Miller, et al., has profound implications for the rights of union workers challenging the ways in which their dues are spent.
The Supreme Court has ruled previously in Communication Workers v. Beck that forced union dues payers (who comprise a majority of union represented employees in Michigan) cannot be forced to pay for a union's political or social agenda. Only dues that cover expenses directly associated with collective bargaining can be compelled.
Employees opting not to fund the union's crusades can exercise their "Beck rights" by seeking a dues reduction and possible rebate for union expenditures that include lobbying and political contributions. To safeguard these rights, the court established the legal ability of objecting employees to challenge their union's dues calculations in order to determine what is legally chargeable to them.
In practice, however, these employees are often forced to go through a union-dominated arbitration process that makes it all but impossible to probe the union's financial records. The right to contest union dues calculations is meaningless unless a worker can examine the union's books to verify the numbers for his case.
Enter the Miller objectors. One hundred-fifty nonunion Delta pilots bypassed the union arbitration scheme by going to a federal court, where broad discovery rules prevail. Discovery is a court-supervised process by which unions can be made to reveal how much of their dues income is spent on politics and other noncollective bargaining activities.
Discovery in the Beck and the Lehnert v. Ferris Faculty Association cases made it known that only 21 percent and 10 percent, respectively, of union dues were spent on legitimate collective bargaining expenses. The remainder was refundable to the dues payers.
The appellate court upheld the pilots' complaint based on the one simple fact that it is unfair to bind to arbitration the nonunion pilots who never agreed to be bound in the first place. The pilots were therefore free to bring their case to the courts despite the union's arbitration requirement.
The rationale of the appellate court is consistent with past Supreme Court cases. Labor unions, including the AFL-CIO and the National Education Association (NEA), are panicked that a Supreme Court decision favoring the pilots will expose its hide-and-seek strategy of keeping dues payers in the dark about their rights. Still more terrifying for the unions is the prospect of class action suits from workers combining to seek big dollar refunds and protect themselves from potential retaliation.
The unions' fears are well-founded, if two developments here in Michigan are any indication.
In 1992, Central Michigan University professor Robert Bromley and 17 other professors and K-12 teachers filed a class action suit against the NEA's state affiliate, the Michigan Education Association, challenging the compulsory "service fee" charged to teachers who object to paying for the union's non-bargaining activities.
The Sixth Circuit Court of Appeals ruled that Bromley is entitled to meaningful discovery of the union's figures and that he is not obligated to exhaust the union's arbitration procedure before bringing his action to court. The final outcome of the suit is pending.
More recently, the U.S. District Court for the Eastern District of Michigan in Bay City has given the green light to a possible class action suit that could potentially involve every forced union dues paying teacher in the state. The value of dues reductions or refunds, depending on the number of plaintiffs in such a suit, could run into the hundreds of thousands of dollars.
Accordingly, the Mackinac Center for Public Policy has filed a Friend of the Court brief advising the Court to uphold the rights of employees in unionized workplaces to settle their claims in the forum of their choosing, whether it be in court or arbitration. Arbitration is the preferred way to resolve disputes in many circumstances, but not those in which the union selects the arbitrator and sets the rules. An employee's option to sue creates an incentive for the union to assure that arbitration is used in a fair and cost-effective way to resolve dues disputes.
The bottom line is greater union accountability to members. Dues payers ought to be able to trust their unions - but at the same time verify the way in which their dues are spent.
The Court should strike a blow for personal freedom, democratic governance, and voluntary cooperation between employees and the unions that represent them.