December 8, 2019

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Is the NLRB Planning an End Run Around the State Right to Work Laws?

As we have reported previously, the National Labor Relations Board (NLRB) has been making major changes to long-standing rules, interpretations, and applications of the National Labor Relations Act that it administers. Several changes have favored unions, such as fast tracking union elections, thereby shortening the period available for employer campaigning; authorizing so-called "micro" bargaining units sought by unions that maximize their chances of winning representation elections; and requiring employers to allow access to its electronic communications systems in union election campaigns.

Recently, the NLRB signaled that it may be seeking to change long-established precedent that bars unions from requiring non-union members in a right to work state to pay a fee to process a grievance. The NLRB invited briefs on the issue in a pending case. The invitation was subsequently suspended when the parties in the case reached a settlement.  However, the fact the invitation was made is an indication that the current NLRB may be intending to reverse this precedent, which could have the effect of undermining state right to work laws that prohibit compulsory union membership as a condition of employment. 

What Is "Right to Work?"

Unions typically insist that their collective bargaining agreements contain union security clauses requiring each employee to pay union dues as a condition of continued employment, whether or not an employee supports the union. A state right to work law is a law that bars employers and unions from agreeing to such union security clauses within the state's jurisdiction. Therefore, in a right to work state, an employee may not be compelled to join a union or pay union dues in order to keep his or her job. Currently, 25 states have right to work laws. (Illinois is not one of them.)  

Current Long-Standing Law Bars Unions From Charging Non-Members for Grievance Processing

The time-honored premise has been that unions may not charge non-members for processing their grievances. According to the U.S. Supreme Court, when a union gains representation of a collective bargaining unit, it is obligated to represent all the employees in the unit fairly and impartially, regardless of whether they are union members or pay dues. Since 1953, the NLRB has interpreted this precedent as barring unions from charging non-members for grievance representation. Its reasoning has been that by requiring non-members to pay fees as a condition of grievance processing, the union is, in essence, discriminating against non-members for what is due them by right, i.e., grievance representation. 

After more than 60 years of precedent, the current NLRB now wants to revisit this issue.

Arguments, Pro and Con, on Allowing Unions to Charge Non-Members for Grievance Representation

Unions in states that are not right to work states do not need to charge for grievance processing, because their contracts in those states can require all employees in the bargaining unit to join or pay dues in order to keep their jobs. But unions long have argued that they should be able to charge non-members in a right to work state for grievance representation, because non-members otherwise get a "free ride" by enjoying the benefit of such representation while not paying for it. Unions claim it is unfair to shift the burden of paying for union representation to those who joined and contributed to the union.

The argument to the contrary is that unions typically control the grievance procedure in union-represented bargaining units. There is no recourse available for non-members to resolve a personal work grievance other than through the process outlined in the union contract's grievance procedure, which typically provides the exclusive means for resolving grievances. Furthermore, that procedure generally formally requires the union's involvement and approval for the advancement or resolution of any grievance. Non-union members who would be charged a fee to handle their grievance would therefore be stuck between paying a fee or forfeiting a right that is guaranteed by the National Labor Relations Act.

More fundamentally, allowing fees for processing grievances effectively amounts to an end run around the right to work laws. If employees are compelled to incur some sort of "pay as you go" fee in order for their grievances to be processed by the union, their state-sanctioned right not to join a union may come at too high a price for them to exercise it.

This development comes at a time when the ranks of right to work states have been increasing. In Illinois, Governor Rauner is pursuing establishment of local right to work zones. Many business owners believe that right to work states provide an atmosphere more conducive to economic growth. It remains to be seen how the NLRB will proceed, but if fees for grievance processing are eventually approved, such a move will doubtless be subject to significant opposition before the smoke clears.

© 2019 Much Shelist, P.C.

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About this Author

Irving M. Geslewitz, Much Shelist Law Firm, Labor Employment Attorney
Principal

Irv Geslewitz, a is a "one-stop shop" when it comes to representing and counseling his clients in any matter relating to employment laws and labor relations. A principal in the firm's Labor & Employment group, Irv has extensive experience representing employers and executives on issues or disputes arising out of the employment relationship. He also handles the entire gamut of labor relations issues that confront management in a unionized setting. His experience ranges from reviewing and helping prepare employment contracts, policies and manuals to representing clients in employment-...

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