This Pro-Employee Decision Will Make Employers Happy
- Feb 21, 2017
- Labor Law
- Dennis J. Merley
The term “Right-to-Work” is really just a shorthand term for “Right to work and be left alone by the labor union.”
A number of state legislatures recently have passed “Right-to-Work” laws making it unlawful for unions and employers to negotiate agreements requiring employees to become and remain union members in order to keep their jobs.
Minnesota is not one of those states, but we could become one if Iowa Congressman Steve King gets his way. He has just introduced a bill in the U.S. House of Representatives for a National Right to Work Act that would make “Right-to-Work” the law throughout the U.S.
“What a Great Idea” Said No Union Official Ever
Some state Right-to-Work laws provide a compromise by allowing labor unions to collect “fair share” fees from employees who are in their bargaining units but have not actually become dues-paying members of the union. This allows the union to defray the cost of still representing these employees who are not actually financially supporting the union. However, many other Right to Work states, as well as Rep. King’s pending bill, allow employees to refuse paying any dues or fair share fees to the union even though the union continues to be legally obligated to bargain on their behalf.
Unions are increasingly concerned about the “Right-to-Work trend and their need to expend union resources benefitting what they call “free riders.” Some are taking action to make it more difficult for existing members to resign. Local 58 of the International Brotherhood of Electrical Workers, for example, passed such a rule in 2014 whereby someone seeking to resign membership in the union or revoke authorization to deduct union dues from his or her pay, “must do so in person at the Union Hall of IBEW Local 58 and show a picture identification with a corresponding written request. . . .”. The employee could, however, contact the union to set up an alternative method for submitting their identification.
Even a Little Restraint is Still Restraint
One member of Local 58 who wanted to resign filed an unfair labor practice charge contending the this rule violated the National Labor Relations Act (the “Act”). The National Labor Relations Board (the “NLRB”) considered the claim and agreed that the rule violated the law, which among other things prohibits actions “to restrain or coerce . . . employees in the exercise of the rights guaranteed in Section 7,” including the right to refrain from any or all forms of union activity.
Essentially, the NLRB found that Local 58’s rule constituted an unlawful restraint on the right of employees to resign their union membership because it imposed a condition upon this right and implied that the union had control over it. The fact that an employee seeking to resign could avoid the intimidation of the union hall in submitting their resignation was not persuasive – it still presented the appearance that the union controlled the right to resignation.
As a final matter, the NLRB also ruled that Local 58’s rule also violated the Act by imposing a new restriction on dues checkoff authorization without the assent of the affected employees.
Employers negotiating with unions in Right-to-Work states should be wary of any request to by the union to negotiate restrictions on an employee’s right to refrain from paying dues or fees.
Where the union acts unilaterally to make it harder for union employees to resign and/or revoke, employers can expect to get questions from employees about their rights and obligations. Although the Act permits employers to discuss such matters, the employer must be careful not to promise any sort of benefit if employee resign, or threaten any reprisals if they do not.