NLRB vs. Right-to-Work

1976 decision will be overruled. In right-to-work states a union cannot force non-members to pay union dues, or to pay anything in lieu of dues. Only union members pay dues, even though a union has a statutory duty to represent both members and non-members.

What happens when a union spends its money to represent a non-member during the grievance-and-arbitration process? Can the union refuse to do this work unless the non-member pays the costs? Or must the union go ahead even though the individual has paid nothing?

Since 1976 the answer has been clear. The union must go ahead even though the individual has paid nothing. Machinists, Local No. 697 (H.O. Canfield Rubber Co.), 223 NLRB 832 (1976). In that case the NLRB held that if a union charges non-members a grievance-processing fee that it does not charge to members, then that is unlawful discrimination in violation of Section 8(b)(1)(A).

That is all about to change. The Board has invited amicus briefs in United Steel, Paper and ForestryRubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 1192 (Buckeye Florida)(12-CB-109654). [Notice and Invitation to File Briefs]

The issues to be decided:

  1. Should the Board reconsider its rule that, in the absence of a valid union-security clause, a union may not charge nonmembers a fee for processing grievances? Should it adhere to or overrule Machinists, Local No. 697 (H.O. Canfield Rubber Co.), 223 NLRB 832 (1976), and its progeny?
  2. If such fees were held lawful in principle, what factors should the Board consider to determine whether the amount of such a fee violates Section 8(b)(1)(A)? What actions could a union lawfully take to ensure payment?

There's no doubt in my mind that the issuance of this notice means that the NLRB will overrule that 1976 case.