REQUESTED BY: Steven D. Burns
QUESTION: In your letter dated January 3, 1978, to our Commission, you, as attorney for the Nebraska Association of Public Employees (NAPE) and Nebraska Political Action Committee (NPAC), have asked whether certain proposed alternative methods of affecting contributions to NPAC out of funds paid to NAPE or directly by means of payroll deductions would violate the requirement of section 49-1469(3)(b), R.S. Supp., 1976, that contributions to a separate segregated political education fund be limited to the voluntary contribution of the members of a labor organization under which the fund was established?
Methods of affecting payment to NPAC known as advance dues check-off or reverse dues check-off of funds otherwise paid to NAPE by means of payroll deductions and the return to the labor organization member of the portion thereof that would otherwise go to NPAC are not in violation of section 49-1469(3)(b), R.S.Supp, 1976 if NPAC chooses to function as a separate segregated political education fund using any of the alternative methods discussed in this opinion.
FACTS: NAPE is a non-profit corporation functioning as a labor organization for state, county and other government employees. NPAC exists by virtue of a document entitled Amended Organization For The Nebraska Political Action Committee which was filed with this Commission on August 4, 1977. That document provides for a board of trustees consisting of five persons to oversee and manage funds acquired and held by NPAC and determine the policy and activities in which NPAC would be involved and for which NPAC would expend such funds. The provisions of that document do not necessarily limit the activities and the functioning of PAC to just those matters set forth in section 49-1469(3). NPAC filed a Statement of Organization with the Commission on July 29, 1977 designating itself as an independent committee. Whether NPAC is also a separate segregated political education fund as that term is used in section 49-1469(3) and thereby exempt from reporting expenditures depends on whether it receives its contributions and makes its expenditures as limited by that section.
The alternative methods for making contributions to NPAC submitted by you are summarized as follows:
Alternative Method 1. A monthly payroll deduction of $6.00 would be paid to NAPE, $5.75 of which would be membership dues and $.25 of which would be a contribution to NPAC. At the beginning of the process and at the time and individual becomes a member of NAPE, that individual would have an opportunity to elect to have that $.25 paid by NAPE to NPAC or to the member. The status of that election would not be changed unless and until the member requested a change. Whenever a request is received by NAPE from a member not to have or no longer have NAPE make such payments to NPAC, NAPE would pay to the member in advance, either on a monthly, quarterly, semiannual or annual basis the equivalent of all monies which would otherwise continue to be paid to NPAC out of payroll deductions for the ensuing month, quarter, six month period or year. In other words, NAPE would make a payment to the member prior to the time that NAPE actually receives the funds from monthly payroll deductions. The form for making such requests, elections, or changes would either provide that if the member does not file a request, NAPE will make the payment automatically to NPAC unless the member requests that such payment be made not to NPAC but to him, or, in the alternative, that NAPE would automatically pay to the member the equivalent of the payments that would be made to NPAC unless and until the member indicated that he wanted such payments to be made to NPAC.
Alternative Method 2. By this method the monthly payroll deduction paid by the employer to NAPE would be $5.75. Annually, on a set date, each member would be given the option to elect to have a contribution of $3.00 made by NAPE to NPAC. In the case of those affirmatively electing to have this contribution made, NAPE would arrange for the payroll deduction for a given month to be an additional $3.00. Two methods of making this election have been proposed. One is whereby the member must request that the additional payroll deduction and contribution not be made or otherwise it will automatically be deducted and paid. The other method would require the member to designate in advance that he wishes to have the additional payroll deduction and the amount thereof contributed by NAPE to NPAC or there would be no such additional payroll deduction.
Alternative Method 3. The payroll deduction would be $6.00 per month per member payable to NAPE. On a set date each year, each member would be notified that in a given month, at least two months in advance, that from that month's $6.00 payroll deduction, $3.00 would be transferred from NAPE to NPAC. Upon such notification the member would have the option of receiving payment of $3.00 if he does not wish the future transfer thereof to be made by NAPE to NPAC. This method could be operated either on the basis of an annual election or a continuing election unless changed. The method of notification to accomplish this method is in two proposals, one notifying the member that unless he requests that the transfer not be made, then it will automatically be made, and if he requests that it not be made, NAPE will pay $3.00 directly to him. In the alternative the member must elect to have the transfer made, and if he does not make such an election, the $3.00 will nevertheless be deducted from payroll but will be paid by NAPE to the member instead of to NPAC. You have advised us that membership in NAPE does not obligate the member to pay his NAPE dues by payroll deduction and that he may pay the same directly with or without an additional amount for NPAC. You have further assured us that NAPE members will be notified in advance and from time to time of their rights to direct payment of payroll deductions to be transferred in part from NAPE to NPAC or to the member and to discontinue or change any election with respect to such transfers depending on the method used.
ANALYSIS: It is our understanding that all of the alternative methods may be operated in such a way as to require an affirmative election whereby the member would designate that he wishes the contribution by NAPE to NPAC to be made, and that if he did not so indicate, the amount of the payroll deduction that would be contributed by NAPE to NPAC would be paid to him in advance of the payroll deduction therefor. Or, in the case of alternative method 2, there would be no payroll deduction of an additional $3.00 unless a member indicated that he desired such a deduction to be made and the amount thereof transferred from NAPE to NPAC. The federal law does not use the word "voluntary" in its statutory provisions. Most of the other states' laws and section 44lb of the federal law provide that 1) it is unlawful for a corporation or labor organization to make a political contribution, 2) that it is permissible for such an organization to establish a fund and administer it, 3) that the fund may not make a contribution or expenditure by utilizing money or anything of ascertainable value secured by physical force, job discrimination, financial reprisals or the threat of force, job discrimination, or financial reprisals; or by dues, fees, or other monies required as a condition of membership in a labor organization or a condition of employment or by monies obtained in any commercial transaction. And, it is under this type of legislation that the Federal rule and the rules of other jurisdiction prohibit dues check-off and reverse dues check-off. Nebraska law is different in two important respects. 1) It does not prohibit the making of political contributions by corporations and labor organizations and in fact recognizes such contributions in section 49-1469(1). 2) Nebraska law does not prohibit a fund from making a contribution or expenditure by utilizing money or anything of value secured by dues, fees, or other monies required as a condition of membership in a labor organization or a condition of employment. Nebraska law simply says that expenditures to and contributions from a fund shall be limited to money or anything of ascertainable value obtained through the voluntary contribution of the members of the labor organization and that no money may be utilized if it was obtained by using or threatening to use job discrimination or financial reprisals. It should be noted that Nebraska law also recognizes the possibility of political contributions by means of membership dues to an independent committee. Section 49-1472(2).
Nebraska is a right to work state, Nebraska Constitution,
Article XV, Sections 14 and 15, meaning that one may not be
required to be a member of a labor organization in order to be
employed. Also, Nebraska is not an agency shop state, whereby
even though one is not a member of the labor organization, he is
still obligated to pay the equilavent of dues to a labor
organization. Section 48-217, R.R.S., 1943. In other words in
Nebraska joining a labor organization and being bound by its
policies as to the payment of dues and other money as a condition
of membership is voluntary, and therefore the use of dues or
other money for political contributions by the labor organization
or its separate segregated fund are not involuntary per se.
Even though under Nebraska law a labor organization may make
political contributions to any committee which has filed a
Statement of Organization pursuant to the Nebraska Political
Accountability and Disclosure Act, it is limited to making
contributions or expenditures solely for the establishment and
administration of a committee which functions as its separate
segregated political education fund. Section 49-1469(3)(a).
However, there is no prohibitions against a labor organization
member authorizing a payroll deduction of dues or other money to
be paid by his employer to his labor organization which in turn
transfers a portion thereof to the labor organization's separate
segregated fund. Nor is there a prohibition against his
authorizing a payroll deduction assigning a payment directly to a
separate segregated fund or any other committee which has filed a
Statement of Organization. Under the methods of affecting
contributions to NPAC, a NAPE member may pay his dues without
payroll deduction and contribute or not contribute directly to
NPAC. Therefore, under the various methods outlined in this
opinion, NAPE would not be making contributions as a labor
organization when it makes a transfer of a portion of payroll
deductions to NPAC. It would simply be acting as an agent,
conduit or intermediary for its members to make such
contributions. Under the provisions of sections 49-1475 and
49-1477 certain reporting requirements may be imposed upon NPAC
in connection with NAPE acting as such an intermediary or agent,
but its doing so is certainly not prohibited by those sections.
The difficult question concerns voluntariness in connection
with reverse dues checkoff, those alternatives where the member
of NAPE does not have the option of selecting the amount of his
payroll deduction and must designate that he does not wish to
have a part of his payroll deduction paid to NPAC and thereby
receive payment from NAPE of what it would pay to NPAC with the
full amount continuing to be deducted from his salary.
However, since a NAPE member is not obligated to pay his
labor organization dues or make a contribution to NPAC by means
of payroll deduction and since his membership in the labor
organization is not required, his choice to be and remain a
member of NAPE and be bound by the policies thereof, including
its policies concerning contributions to NPAC by means by payroll
deductions, is voluntary. Therefore, the various methods
outlined in this opinion for the transfer of funds assigned to
NAPE by means of the payroll deductions of its members, including
reverse dues checkoff, would not violate the requirement of
section 49-1469(3)(b) that education fund shall be limited to
money or anything of ascertainable value obtained through the
voluntary contribution of the members of the labor organization
under which the fund was established.
Adopted by the Nebraska Accountability and Disclosure
Commission as an official advisory opinion this 15th day of