NLRB Looking at Free Rider Pay-to-Play Dues Obligation

duesNew Orleans     The National Labor Relations Board (NLRB) took a step that might be small, but at least seems in the right direction.  They have solicited legal briefs, and no doubt there will be many from both the union and management side of the bar, on the question of dues or fee obligations for nonmembers in private sector employment who are represented by the union in grievances and disputes.  This may seem like a small thing to the general public, especially since so few workers are now represented by unions in the private sector, hardly more than one in twenty, but the amount that it rankles anyone who understands the issue is huge.  This problem also only affects the subset of workers in the half of the United States that live in right-to-work states which means even fewer of those workers, but that’s still a big number.

Nonetheless, here’s the contradiction involved in right-to-work states under the current practice and operating assumptions of the National Labor Relations Act.  When a union is certified after an election or by demonstrating a clear majority of support from the workforce and achieving voluntary recognition from an employer, the only thing a union
really “wins” are the rights to attempt to bargain a contract over a twelve-month period, if done in good faith, and the fact that the employer cannot legally challenge the union’s majority for that period.  The union under US labor law is the “exclusive representative” of all of the bargaining unit workers.All individual deals that an employer might try to cut with a worker, no matter how favorable, are illegal, because of the exclusivity of the union’s representation.  Any issue involving wages, working conditions or terms and conditions of employment must be exclusively handled through the union.

If a collective agreement is negotiated successfully, which believe it or not, does happen sometime, maybe in fact about half of the time, then whether in a so-called right-to-work state or a union-shop state, the union under US law continues to be the exclusive representative of all of the workers, regardless of whether the worker decides to join and pay membership dues or in non-right-to-work states pay an agency fee that is less than membership dues, but is mandatory if successfully bargained in the contract.  In right-to-work states though because the union is the exclusive representative, they have a “duty of fair representation” for each worker, regardless of their membership, and here’s where the wound cuts deeply.  If a nonmember has a beef and it is legitimate, the union has the obligation to pursue justice for that worker just as they would
for any dues paying member all the way through arbitration which can cost thousands of dollars.  These workers are called “free riders,” because the other workers who are paying dues are financing the union and paying for them to get a fair deal even while that worker is shirking any dues payment obligations.  Clearly this is unfair all the way
around and, worse, the stories of it crippling entire local unions are legendary, and the number of DFR or duty of fair representation cases filed before the NLRB on such cases are numerous.  Talk about false entitlements!

Professors commenting on the NLRB’s initiative are already clear that there is nothing in the Act or elsewhere that has ever barred some form of fee payment for members in right-to-work states who are accessing union services.  If there is no legal bar to instituting a new system, then we’re only left with the ideological and class objections that divide labor and management, so nothing new there under the sun.  Even righting this contradiction and injustice won’t change the predicament that unions find themselves in, but it least unions would have a fair system in the workplace and a better shake representing private sector workers, no matter where they live in the country.

A fix here will at least take the biggest devil out of the details of a union representing all the workers equally and exclusively.


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