Right to Work and “Fair Share”

by Snell & Wilmer
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As a general proposition, employees in “right to work” states may not be required to become union members, maintain union membership or pay union fees in order to obtain or retain employment. In “union security” states, on the other hand, employees may be required to become members, retain membership and/or pay union fees in order to obtain or retain employment.

Irrespective of whether the union representation takes place in a “union security” or “right to work” state, unions have the duty to represent all of the employees in the unit fairly and without regard to union membership or lack thereof. Specifically, with respect to grievance processing, unions may not require non-members to pay fees in order for the union to represent the non-member in the grievance/arbitration process.[1] Pointedly, in “right to work” states, unions may not charge non-members “fair share” fees in order to provide vital collective bargaining services, such as representation through the grievance/arbitration process. Any such “fair share” charges would coerce employees in the exercise of their right to refrain from union activities—a protected right under Section 7 of the National Labor Relations Act.[2]

Free Riders
Labor unions frequently argue that it is unfair to require them to provide vital collective bargaining services to so called “free riders”—union represented employees that do not pay union dues or fees. Unions argue that it is only fair that non-members be required to pay a “fair share” fee in exchange for the union’s representation through a grievance/arbitration process.

Recently, an National Labor Relations Board (NLRB) Administrative Law Judge reiterated the well-established principle, under NLRB precedent, that any requirements that non-member employees pay a fee to the union in exchange for “vital collective bargaining services” are unlawful. This is true, regardless of whether the fee is equivalent or related to the regular dues paid by union members in the unit.[3]

Watch Out
If this case is appealed to the Board, it would provide the current Board with an opportunity to reconsider the union’s “fair share” argument.

Notes

[1] H.O. Canfield Rubber Co., 223 NLRB 832 (1976).

[2] Davis Co., 291 NLRB 182 (1988).

[3] Buckeye Florida Corp., 12-CB-109654, JD-Atl-13-14 (March 24, 2014). 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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