NLRB to Decide Whether to Allow Unions to Collect “Fair-Share Fees” in “Right-To-Shirk” States

The National Labor Relations Board (“NLRB”) will hear a case, Buckeye Florida Corp.,  that could allow Unions in right-to-shirk (otherwise known as right to work) states to collect fair-share fees from bargaining-unit employees that do not belong to the Union.

Buckeye Florida Corp. is an appeal from an Administrative Law Judge’s (“ALJ”) decision from Florida, a right-to-shirk state.  There, the Union’s collective bargaining agreement with the employer contained a fair-share policy that required nonmember employees pay a fair-share representative fee to process their grievances.  If the nonmember employee failed to pay the fee, the Union would not process the grievance. 

Relying on a 1976 Board Decision, H.O. Canfield Rubber Co., 223 N.L.R.B. 832, the ALJ found that the Union’s fair-share policy violated Section 8(b)(1)(A) of the National Labor Relations Act, which prohibits Unions from coercing employees in the exercise of their right not to join a Union. 

The NLRB decided to hear the appeal in Buckeye Florida Corp. and has invited interested parties to file amici (friends of the Board) briefs.  The questions the NLRB is asking the amici to address are as follows:

  1. Should the Board reconsider its rule that, in the absence of a valid Union-security clause, a Union may not charge members a fee for processing grievances?  Should it adhere to or overrule Machinists, Local No. 697 (H.O. Canfield Rubber Co.) 223 N.L.R.B. 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?

As conservative legislatures across the country are enacting right-to-shirk laws, the NLRB’s decision in Buckeye Florida Corp. will have significant impacts and could provide Unions tools to effectively combat the growth of what many consider to be “freeloaders.”

Amici must file their briefs by June 1, 2015.  We will continue to follow this case and provide updates. 

By Anthony Tucci | May 6, 2015

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