Immunity From ID Theft Laws – Another Court-Created Special Privilege For Big Labor?

Court Rules Union Bosses Can Ignore Identity Theft Laws To Intimidate Employees

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Over the course of the past century, American elected officials and judges have handed to Big Labor an array of special privileges and immunities that would be unimaginable for any other type of private organization.

The U.S. Congress started the ball rolling in 1914 when it adopted the Clayton Antitrust Act.  Prior to the Clayton Act, the prohibitions in the Sherman Act of 1890 on combinations or conspiracies aimed at restraining or obstructing interstate commerce applied to both businesses and labor unions.  At the beginning of the 20th Century, union officials launched a lobbying campaign “to get the antitrust laws modified so as to exempt unions from their application.”[1]  Section 6 of the Clayton Act, adopted at union lobbyists’ behest, reads, in part:

Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor . . . organizations . . . ; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the anti-trust laws.[2]

In 1914, then-American Federation of Labor union President Samuel Gompers hailed Section 6 as an enormous victory for Organized Labor, but it was far less significant than what was to come a couple of decades later.  In 1932, union boss-appeasing Republican President Herbert Hoover signed into law the Norris-LaGuardia Act.  Norris-LaGuardia includes an extraordinary provision giving union bosses and their militant followers immunity from injunctions against trespass on an employer’s property.  Even many businesses that are not engaged in interstate commerce, and are consequently not covered by Norris-LaGuardia, are nevertheless barred by state anti-injunction laws from obtaining injunctions to prevent Big Labor trespassing on their property.

More than half a century ago, legal scholar Roscoe Pound commented on the magnitude of the “anti-injunction” privilege Congress and President Hoover handed over to union officials:

It is the general rule, applicable to everybody, that repeated and continuing trespasses upon another’s land may be stopped by injunctions.  This is especially true where, as usually in cases of “picketing,” the result is to prevent access to and use of the land, since the remedy of repeated and multiplied actions for damages is not adequate to protect the owner.  But the remedy of injunction, available to everybody against everyone else, is denied the employer against trespassing members of labor organizations in a labor dispute.Moreover, the wholly inadequate remedy at law for damages is seldom even theoretically available and in substance is practically unavailable.[3]

Three years after Norris-LaGuardia, Congress approved and President Franklin Delano Roosevelt rubber-stamped the National Labor Relations Act (NLRA), which created a host of new legal privileges for union bosses.  The two most important are monopoly bargaining, often euphemistically labeled as “exclusive representation,” and forced union dues.

‘Dissident Employees No Longer Fully Own Their Own Labor’

In blunt language, monopoly bargaining, as provided for in Section 9(a) of the NLRA, is the government-granted power to force employees to accept unwanted union representation.  Economist and labor law scholar Charles Baird, professor emeritus at California State University, East Bay, has cogently explained what Congress really did by setting up a procedure under which union bosses can acquire a legally enforceable privilege to act, with or without the employer’s consent, as employees’ “exclusive bargaining agent” on matters concerning their pay, benefits, and work rules:

It is important to note that a union that acquires exclusive bargaining agent status represents all employees  in the bargaining unit.  It represents the employees who want the winning union to represent them, but it also represents those employees who want to be represented by some other union as well as those employees who do not want to be represented by any union.  Each employee in the bargaining unit who does not want the representation services of the winning union loses the right to select his own agent in the sale of his own labor services.  He cannot even represent himself.  The basic axiom of natural rights theory, the axiom of self ownership, is thrown out the window.  Dissident employees no longer fully own their own labor.  Full ownership implies that a worker individually can choose his own agent or even individually choose to use no agent in the sale of his labor services.[4]

Apologists for monopolistic unionism usually try to justify exclusive representation by making a false analogy between unions and government bodies.  Governments are by nature monopolies.  But under our constitutional system the invocation of majority rule to force unwilling persons to submit to the discipline of a private organization is unacceptable.  For example, the decision by the majority of businesses in a community to join the Chamber of Commerce doesn’t give them the legal power, under any statute, to prevent the remaining businesses from taking a public stance on a business-related issue contrary to the Chamber’s or hiring their own lobbyists to promote this stance.

Organized Labor’s forced-dues privileges, often euphemistically referred to as “union security,” are closely connected to its monopoly-bargaining privileges.  Section 8(a)(3) of the NLRA, as currently amended, putatively prohibits employers from interfering with, restraining, or coercing employees in the exercise of their right to join or not join a union, but at the same time authorizes every unionized employer to make “an agreement with a labor organization . . . to require as a condition of employment membership therein . . . .”  Since the U.S. Supreme Court’s 1963 General Motors decision, this clause has been interpreted to sanction forced “financial core” membership or forced “agency” fee payment for employees who prefer not to join, rather than forced full union membership.  Compulsory “financial core” union members and “agency” fee payers may be fired for refusal to bankroll the activities unions carry out directly in their capacity as employees’ monopoly-bargaining agent, but may not be fired for refusing to bankroll other union activities.

Union bosses and their apologists contend that employees who don’t want a union, and never asked for one, nevertheless “benefit” from having a union as their monopoly-bargaining agent, and, therefore, forced dues and fees are defensible.  However, as Baird has explained, this contention is “without merit”:

The American Federation of Labor under William Green . . . supported . . . the 1935 Act on the grounds that exclusive representation was the only acceptable arrangement.  It isn’t as if federal law importuned unions to accept the burden of exclusive representation.  Exclusive representation is in itself an unjust privilege that federal law granted to unions at the unions’ behest.  For the unions then to go on and say that the burden of exclusive representation justifies union security arrangements is at best disingenuous.   If unions want to be free of the burden of free riders, all they have to do is lobby the Congress in favor of the repeal of Section 9(a) of the NLRA.  Instead, they heap one injustice on top of another . . . .[5]

In 1973, the U.S. Supreme Court Found That The ‘Use of Violence to Achieve Legitimate Union Objectives’ Isn’t Criminal Extortion

Unionization of American employees spread rapidly after the U.S. Supreme Court upheld the NLRA in 1937.  However, contract provisions authorizing the termination of employees for refusal to join or pay dues to a union remained relatively rare until World War II.  But the National War Labor Board established by President Roosevelt in early 1942 zealously and successfully promoted compulsory unionism.

By 1947, more than 25% of private-sector workers across Americawere being forced to join and remain in a union as a condition of employment.[6]  But practically as soon as forced unionism became widespread there was a powerful public backlash against it.  From 1944 to 1946, five states (Florida, Arkansas, South Dakota, Nebraska and Arizona) passed state Right to Work laws protecting employees from being fired for refusal to join or pay dues to an unwanted union.  In 1947 and 1948, an additional seven states (Texas, Virginia, Tennessee, Georgia, Iowa, North Dakota, and North Carolina) adopted Right to Work protections.[7]  In the middle of the wave of Right to Work activism at the state level, a Republican-controlled Congress avoided a direct confrontation with Democratic President Harry Truman over compulsory unionism, and opted instead only to include a provision – 14(b) – explicitly recognizing states’ and territories’ prerogative to enact Right to Work laws in the 1947 amendments to the NLRA commonly known as Taft-Hartley.

Since the rise of the Right to Work movement, Organized Labor has come increasingly to rely on unelected judges, rather than Congress, to expand its special privileges at the federal level.  To be sure, monopolistic unionism continued after World War II to achieve offensive legislative triumphs inWashington,D.C., periodically.  One notable example is the 1951 expansion of the federal authorization for compulsory unionism to railroad and airline industry employees.  This forced-dues statute is now effective in all 50 states, including those with Right to Work laws protecting most private-sector employees.  But from the 1960’s until now Right to Work advocates have succeeded time and again in blocking major expansions of Big Labor’s legal privileges on Capitol Hill.

Meanwhile, federal courts, including the U.S. Supreme Court, have remained relatively eager to accommodate union special interests.  In 1974’s Old Dominion Branch No. 496, National Association of Letter Carriers v. Austin, for example, a High Court majority concluded:

. . . Federal law gives a union license to use intemperate, abusive, or insulting language [to intimidate and/or humiliate employees who prefer not to join a union] without fear of restraint or penalty if it believes such rhetoric to be an effective means to make its point.[8]

At the November 1973 Supreme Court hearing in Austin, union lawyer Mozart Ratner did not hesitate to acknowledge that the “pejorative” language used by his clients, bosses of a National Association of Letter Carriers union local based in Richmond, Va., with regard to independent-minded mailman Henry Austin and other union nonmembers “might well be deemed actionable per se in some state jurisdictions.”[9]  But what could in other contexts constitute actionable defamation is protected speech for union bosses seeking to browbeat workers into joining a union, explained Ratner.  Six justices out of nine ultimately concurred.

In its immediately preceding session, the High Court had found in United States v. Enmons that a well-coordinated and strike-related assault in which union militants fired rifles at three utility company transformers, drained the oil from another, and blew up an entire company substation did not constitute “extortionate violence” punishable under the federal Hobbs Act.  In a February 1973 opinion for a 5-4 majority that continues to flabbergast the vast majority of Americans who come to learn about it, Justice Potter Stewart insisted that “the use of violence to achieve legitimate union objectives” isn’t criminal extortion as defined by Hobbs.[10]

Fisher Decision Makes a Mockery of Federal and State Labor Laws

Because Austin was a constitutional case based on the justices’ interpretation of the First Amendment, only a highly unusual response by Congress could potentially have overturned it.  Enmons, however, was purely statutory.  Nevertheless, despite persistent and determined efforts by Right to Work advocates over the past four decades in support of federal legislation to overturn Enmons, this misguided ruling remains the law of the land today.

Part of the reason that a legislative reversal of Enmons has been and remains difficult to achieve is the prestige of the U.S. Supreme Court, which even at its worst PR moments rates far more highly in the public’s mind than does Congress.  Politicians who don’t want to cross Big Labor on the issue of union violence under the Hobbs Act have always been able to hide behind the Supreme Court.

In contrast to the Enmons loophole, the latest judicially-created special legal exemption for union officials has not yet received an explicit stamp of approval from the Supreme Court.  Up to now, the most august judicial body to hold that union bosses are largely exempt from state identity-theft laws is the North Carolina Court of Appeals, in Fisher v. Communications Workers of America.  And as a statutory case, Fisher potentially could be remedied simply by amending the NLRA.

In North Carolina, it is a serious offense for a business or nonprofit group to reveal publicly any employee’s, customer’s, or contributor’s name in combination with his or her social security number.  Exposing any person to identity theft in this way, through negligence or malice, makes you liable under state law to a fine of up to $5000 per violation under the North Carolina Identity Theft Protection Act (ITPA).

In the fall of 2007, John Glenn, president of Local 3602 of the Communications Workers of America (CWA/AFL-CIO) union, apparently violated the ITPA by maliciously posting the names and social security numbers of 33 AT&T Bell South employees on a publicly accessible bulletin board at the company’s facility in Burlington, N.C. All the employees whose names and personal information were posted in a hallway close to the building entrance, accessible to employees and nonemployees, had exercised their freedom under North Carolina’s Right to Work law to resign from the CWA and cease paying any dues or fees to a union they didn’t want.[11]

One of the employees whose privacy Glenn willfully violated was Jason Fisher.  Fisher notes that, since he is an independent contractor, CWA officials don’t even pretend to be seeking better wages and benefits for him.  Yet he received the same ugly punishment as other employees who dared to stop bankrolling the CWA union brass.

In June 2008, 16 of the employees whose rights under the ITPA were brazenly violated filed suit against the CWA, CWA District 3, and CWA Local 3602 in state court.  The National Right to Work Legal Defense Foundation assisted them.

But incredibly, both the trial court and the state Court of Appeals found that, since Glenn’s obvious goal was to retaliate against employees for exercising their legal right to refrain from union membership, he is entitled a special exemption from being subjected to the ITPA’s penalties for revealing employees’ personal information.  Both courts claimed that, since such thuggish trampling of employee rights may violate the National Labor Relations Act (NLRA), it may not be punished by state authorities.

Jason Fisher and the other plaintiffs did originally file, with their Foundation attorney’s assistance, a January 2008 complaint with  the National Labor Relations Board (NLRB) accusing CWA Local 3602 of violating Section 8(b)(1)(a) of the NLRA and of breaching its “duty of fair representation.”  It may seem obvious to lay observers that the Local 3602 chieftain was using ruthless intimidation tactics to coerce employees into paying dues for Big Labor politics and lobbying as well as union monopoly bargaining.  Glenn thus violated bothNorth Carolina’s Right to Work law and federal labor law.  But the NLRB did not even issue a complaint against Local 3602 or its parent unions.  It did not even require Glenn to admit he had done anything wrong.  Instead, the NLRB concocted a settlement in which all union officials effectively had to do is promise they would not publicly reveal employees’ personal information again.

The NLRB’s decision not to take up the charges filed by Jason Fisher and his colleagues made a mockery of federal and state laws that are supposed to protect the individual employee’s freedom not to join a union.  But what the North Carolina Court of Appeals did was even worse.

One Restoration of Common-Law Accountability For Union Officials Could Lead to Others

The fact is, even if the NLRB had done its duty and prosecuted CWA kingpins, the potential penalties for trampling on employees’ freedom not to join a union imposed under the NLRA are paltry by comparison with the ITPA’s penalties of up to $5000 per instance of exposing a person to identity theft.

There is no legitimate purpose of labor law served by making a criminal who commits ID theft to intimidate a person into joining or not joining a union liable to only a wrist slap at most while a criminal who commits ID theft for any other purpose faces a fine of up to $5000 for a single violation.  The Court of Appeals decision (like the trial court decision before it reaching the same conclusion) that ITPA violations by union bosses are preempted by the NLRA is, therefore, preposterous.

Unfortunately, legal efforts by the plaintiffs in Fisher to reverse the Court of Appeals came to a dead end in October 2012, when the U.S. Supreme Court denied a petition to hear their appeal.  But that does not mean there is no remedy.

By adopting a short and simple amendment to the NLRA now, before the damage of the Fisherruling is compounded by other activist courts in other states, Congress can make it absolutely plain that nothing in this statute should be interpreted as preempting state or federal laws specifically aimed at protecting Americans from identity theft.

Such an NLRA amendment would be valuable first of all as a means of deterring union bosses in the future from abusing independent-minded employees the way John Glenn did in late 2007.  It could also be useful as a precedent.  If Congress can overcome inertia and Big Labor opposition in order to restore one kind of common-law accountability for union officials, that could lead to other reforms requiring union officials to face the same penalties for breaking the law that everyone else does.

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Nothing here is to be construed as an attempt to aid or hinder the passage of any bill before Congress or any state legislature. (

[1] Clarence B. Carson, Organized Against Whom?  The Labor Union in America, Western Goals,Alexandria,Va., 1983, p. 43.
[2] 5 USC § 17
[3] “Legal Immunities of Labor Unions,” Journal of Labor Research, Fall 1979, pp. 46-97.  The quote cited is on pp. 69-70.  The text referenced is a reprint of a 1958 article by Pound originally published by the American Enterprise Institute.
[4] From Opportunity or Privilege: Labor Legislation in America, Social Philosophy and Policy Center, Bowling Green, Ohio, 1984, p. 49.
[5] Ibid, pp. 56-57.
[6] See David Kendrick, “Compulsory Unionism During World War II,” National Institute for Labor Relations Research briefing paper, Springfield, Va., 2001 and Leo Troy and Neil Sheflin, Union Sourcebook: Membership, Structure, Finance Directory, IRDIS,West Orange,N.J., 1985, Table 3.91.
[7] Gilbert J. Gall, The Politics of Right to Work: The Labor Federations as Special Interest, 1943-1979, Greenwood Press, Inc.,Westport,Conn., 1988, pp. 19-20.
[8] 418U.S. 264.
[9] Quote appears in the transcript of the Austin hearing provided and made available on the Internet by the Oyez Project at IIT Chicago-Kent College of Law.
[10] 410U.S. 396.
[11] See 716 S.E.2d 396.  The facts of the case are uncontested.