applying Abrams v. Commc’ns Workers of Am., 59 F.3d 1373 (D.C. Cir. 1995)
How later courts described this case
- applying Abrams v. Commc’ns Workers of Am., 59 F.3d 1373 (D.C. Cir. 1995)
- union financial disclosure inadequate where the union refuses to provide the supporting notes and schedules
- unions must adequately explain the basis of their calculations and the method used to arrive at them
Written by the judges who cited it.
The opinion
TATEL, Circuit Judge,
concurring:
I dissented in Abrams because I saw nothing in Hudson that required its application to new employees and financial core payors. Abrams, 59 F.3d at 1383-84 (Tatel, J., concurring in part and dissenting in part). This case demonstrates the consequences of Abrams: judicial usurpation of the Board’s traditional authority to determine national labor policy.
To protect employees’ Beck rights, the Board has crafted a three-step process, calibrating the nature and amount of information that unions must give employees to *50 the decision they must make at each stage. New employees and financial core payors receive an initial Beck notice informing them of their Beck rights and how to exercise them. See California Saw & Knife Works, 320 NLRB at 233. Beck objectors are told the amount of the reduced dues as well as how that amount was calculated. See id. Beck objectors who challenge the union’s calculation receive still more information, with the union bearing the burden of proving the accuracy of its calculation. See id. at 240. Balancing employees’ need for information against the burden on unions of providing the information, this process reflects the Board’s application of the duty of fair representation in the Beck context.
Consistent with this approach, the Board held in this case that unions were not required to disclose to new employees and financial core payors the percentage by which their dues would be reduced were they to exercise their Beck rights. Not only does the Board believe that new employees and financial core payors have no need for this information to decide whether to exercise their Beck rights, but it concluded that providing the information would be an “expensive and timeconsum-ing undertaking.” International Bhd. of Teamsters, Local 166, 327 NLRB No. 176 , slip. op. at 3. Whether to disclose the percentage is a “judgment call,” within the “wide range of reasonableness” afforded unions in carrying out their duty of fair representation, the Board found. Local 166’s failure to disclose the percentage was not “arbitrary, discriminatory, or in bad faith.” Id.
Absent Abrams, we would evaluate the Board’s reasoning pursuant to a highly deferential standard. See Ferriso v. NLRB, 125 F.3d 865 , 869 (D.C.Cir.1997). Yet as our opinion in this case demonstrates, Abrams’ extension of Hudson to new employees and financial core payors has foreclosed us from considering the Board’s rationale at all, requiring that we ignore not just our traditional deference to the Board, but also the “wide range of reasonableness” afforded unions in satisfying their duty of fair representation. See Marquez, 119 S.Ct. at 300. “It is hard to think of a task more suitable for an administrative agency that specializes in labor relations, and less suitable for a court of general jurisdiction, than crafting the rules for translating the generalities of the Beck decision ... into a workable system for determining and collecting agency fees.” International Ass’n of Machinists & Aerospace Workers v. NLRB, 133 F.3d 1012, 1015 (7th Cir.1998). By commandeering a judgment that should have been left to the Board’s expertise, Abrams has produced a result that I doubt Hudson intended.