On Thursday, April 16th, the NLRB announced on its website that it is inviting briefs to help determine “whether parties and amici believe the Board should adopt a rule permitting unions to collect fees from nonmembers for grievance processing.”
“When this board is asking for an amicus brief on the reconsideration of a rule, the majority’s already decided that it wants to change the rule,” said Michael Lotito, a management-side attorney at Littler Mendelson stated. “This is a signal from this board that [says]: ‘we’re going to push back against the expansion of these right-to-work actions.’”
Currently, unions in Right-to-Work states are required to represent both members as well as non-members in the administration of grievances. Representing non members, however, is something that most unions abhor.
Since 1947, when Congress amended the National Labor Relations Act to (among other things) allow states to adopt so-called “Right-to-Work” laws that forbid the firing of employees for nonpayment of dues or fees to unions, unions have decried these laws as they require unions to represent nonmembers “for free.”
As union expend moneys to represent these “free riders,” unions have long argued that they should be entitled to collect some form of monetary payment for their services.
“There is no seeming rationale for this inequity, and nothing in the federal labor law nor in state right-to-work laws requires it. If unions are prohibited from collecting fair share fees, they should at a minimum be permitted to charge workers for the costs of individual grievance representation,” Harvard Law Professor Ben Sachs wrote on his blog.
While many would argue that a union should not be required to expend its resources on the representation of persons not willing to pay for those services, the underlying problem exists due to the legal privilege unions enjoy, which is “exclusive representation.”
According to the National Labor Relations Board [in PDF]:
Section 9(a) provides that the employee representatives that have been “designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining.”
Once a collective-bargaining representative has been designated or selected by its employees, it is illegal for an employer to bargain with individual employees, with a group of employees, or with another employee representative. [Emphasis added.]
Under current law, individuals or groups employees—including non-members have the legal right to present grievances to their employer provided any adjustment is not inconsistent with the terms of the union’s collective bargaining agreement.
In addition, the union has the right to be present at a meeting where non-members grievances may be adjusted.
Where one controversy comes into play is when a non-member may demand a union file a grievance or if a union were to file a grievance on behalf of a class (or department) of workers which includes non-members.
For example, in a seperate-but-related case, charges were recently filed with the NLERB against the Teamsters in Texas (which is a Right-to-Work state), where the Teamsters’ business agent is “telling [Sammie] Monroe to pay attorney fees if she, for instance, had an individual grievance against the company, or if she were pulled into a larger employee/employer dispute.”
As in most other cases, when the union attorneys at the NLRB signals that they want to change the application of the law by inviting briefs, the results are usually a foregone conclusion.
In this case, if the NLRB does, in fact, determine that “fair share” fees will apply to non-members in Right-to-Work states, it will likely be met with legal challenges and, quite possibly, further legislative attempts by the 25 states to curtail the NLRB on this issue.