In a little-noticed National Labor Relations Board (NLRB) announcement in April, the federal agency is seeking input on a union fundraising initiative that has long been deemed illegal under federal labor law. The matter arose recently in Buckeye Florida Corporation, a subsidiary of Buckeye Technologies Inc., and Georgia Pacific LLC, Case 12-CB-10954. In that case, the union charged a fee to process non-members’ grievances. In a March 24, 2014 decision, Administrative Law Judge William Nelson Cates (coincidentally a judge who was recommended for the position by Jim Wimberly) found that the union’s rule violated Section 8(b)(1)(A) of the National Labor Relations Act. That provision makes it unlawful for a union to restrain or coerce employees in the exercise of their protected rights.
In right-to-work states, employees may not be forced to join a union or to pay union dues. Imposing charges on employees who have exercised their right not to join a union in connection with grievance processing has for years been considered a form of restraint or coercion of those employees. Accordingly, the initial decision in the Buckeye Florida case is not surprising.
However, the union appealed that decision to the NLRB in Washington, D.C. The union argued it should be allowed to charge non-members fees for handling grievances involving their employer, even though the union is already deemed to represent all bargaining unit employees under federal labor law, whether they are union members or not. If this contention is accepted, it would effectively allow unions to create adverse consequences in the form of added cost for employees who exercise their statutory right not to join unions in right-to-work states.
On April 15, the NLRB invited the filing of briefs in order to allow other interested persons the opportunity to address the following questions: (1) “Should the board reconsider its rule that, in the absence of a valid union-security clause, a union may not charge non-members a fee for processing grievances?,” and (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)?,” and as a corollary, “What actions could a union lawfully take to ensure payment?” The due date for filing such briefs was recently extended to July 15.
Unions of course argue that the right-to-work laws encourage “free riders” in states that have such laws. Nevertheless, the National Labor Relations Act grants states the right to enact such laws, and many states have done so. In view of those laws, are unions to be given the ability to effectively punish employees who have exercised their statutory rights by imposing charges in exchange for the union performing a duty generally considered a basic and routine function – i.e., processing a grievance on behalf of an employee it represents? It appears that the NLRB will answer that question, probably late this year.
Jeffrey G. Jones is a regional managing member for Wimberly Lawson Wright Daves & Jones PLLC. He can be reached at firstname.lastname@example.org.