NLRB May Legitimize Union Fees in Right-to-Work States

By Allen Smith May 5, 2015

In a call for briefs signaling the National Labor Relations Board’s (NLRB’s) interest in overturning existing law, the board has asked whether a union should be able to charge nonmembers fees for processing grievances in right-to-work states.

Mark Mix, president of the National Right to Work Legal Defense Foundation, issued a statement asserting, “As right to work expands across the country, it is unfortunately not surprising that [President Barack] Obama[’s] NLRB is now actively working to undermine the 25 state right-to-work laws.”

“It’s an interesting development that’s flying beneath the radar more than it should,” Steve Bernstein, an attorney with Fisher & Phillips in Tampa, Fla., told SHRM Online.

In right-to-work states, union security clauses that require bargaining-unit employees to become members and pay dues and fees as a condition of continued employment are unlawful, noted Steven Swirsky, an attorney with Epstein, Becker & Green in New York City. “The board has long held that it is an unfair labor practice for a union to require nonmembers who are employed in a bargaining unit as to which it is the exclusive representative to pay a fee as a condition of having their grievances processed, including taken to arbitration,” Swirsky said.

Buckeye Florida Case

In the case before the board, Jimmie Ray Williams has alleged that the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 1192, AFL-CIO, CLC (Buckeye Florida Corp.) violated the National Labor Relations Act (NLRA) by informing him that if he wanted the union to process his grievance concerning an alleged overtime violation, he would be required to pay the union a fair share fee, even though he was in Florida, a right-to-work state. The fee was equal to the dues paid by union members for the remainder of the term of the collective bargaining agreement in effect, Swirsky noted.

Williams filed an unfair labor practice charge against the union with the NLRB, which found on March 24, 2014, that the union’s Fair Share Policy violated the NLRA. But the board’s more recent invitation for briefs shows it is considering abandoning the rule that fees may not be imposed as a condition of having grievances processed in right-to-work states, he observed.

HR’s ​​Stake

“The board’s decision to reconsider the law in this area is a reflection of the recent enactment of right-to-work legislation in states such as Wisconsin, Michigan and Indiana, and the consideration of such legislation in other states, such as Delaware, where such legislation was introduced recently,” Swirsky said.

“HR professionals have a lot at stake in how the questions in the Buckeye Florida case are answered by the board when it reconsiders the existing law and rules,” he added.

Bernstein said the case is a wake-up call for employers that have taken right-to-work laws for granted. “If the board can erode right to work like this [assuming it does], what’s the business advantage of working in a right-to-work state?” Bernstein asked.

“HR professionals should care about this development because it may increase the likelihood that those employees who do not want to pay money to a union in order to work at the company will quit or not apply to work there,” Howard Bloom, an attorney with Jackson Lewis in Boston, and Philip Rosen, an attorney with Jackson Lewis in New York City and general counsel to HR/NY, the New York City chapter of the Society for Human Resource Management (SHRM), said in an e-mail.

“Some individuals, whether they are applicants or current employees, do not want to work for a company where a union represents the employees. Cost is one reason why. Currently, however, in a right-to-work state, not having to pay money to the union may somewhat ameliorate this objection to union representation and, therefore, reduce the possibility that a current employee will quit or an applicant not apply,” they explained.

Board’s ‘M​​agic’

If the board reverses its precedent, “so much for not paying dues in right-to-work states,” noted Michael Lotito, an attorney with Littler in San Francisco and former chair of the SHRM board of directors.

“I fully expect the board majority to reverse its settled precedent,” he added. “I fully expect many groups to file amicus briefs. And I fully expect that after the board does its ‘magic,’ there will be other litigation in the courts reversing what the board is now trying to do.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.


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