The National Labor Relations Board, the federal agency that enforces federal labor laws, is contemplating a rule change that would chip away at state right-to-work laws.
The potential change would allow unions to charge nonmembers “fair share” fees to file workplace grievances with the board. The fees would effectively circumvent right-to-work laws, which prohibit workers from being forced to join a union or pay it any fees as a condition of employment.
The board’s move is an apparent reaction to a case decided last year in which a board administrative law judge ruled that a Florida union violated the state’s right-to-work law. The case involved a worker who had opted-out of union membership but sought in 2013 to file a workplace grievance with the board through the union.
Under the union’s contract with the employer, as with most union contracts, workers were not allowed to file grievances on their own or with outside groups. The Florida worker abandoned his effort after he learned the union would charge him the equivalent of three years’ worth of membership fees to process the grievance.
The judge threw out the union’s grievance rule, stating that it clearly violated the state’s right-to-work law. In the ruling, the judge said the applicable board rule was “well settled and unambiguous in this case.”
The board, citing the Florida case, announced Thursday was seeking legal briefs on the issue of “whether … the board should adopt a rule permitting unions to collect fees from nonmembers for grievance processing.”
The notice, a preliminary step in the board’s rulemaking process, asked lawyers to submit arguments regarding what factors it should consider when determining “whether the amount of such a fee violates [the National Labor Relations Act]?” as well as “what actions could a union lawfully take to ensure payment?” The notice also sought comments on whether unions could charge non-member workers fees to file workplace grievances even if the union wasn’t explicitly allowed to under its contract with management.
In effect, the board is asking labor lawyers to make their cases for why the judge’s ruling was wrong in the Florida case and what legal standards the board should adopt to make that clear in future cases. This, critics argue, would chip away at right-to-work laws themselves.
“The legal argument that would permit that in the face of right-to-work would also permit a union charging ‘agency fees’ to non-members,” said James Sherk, labor policy analyst for the conservative Heritage Foundation.
Sherk added that the precedents were established enough that a new rule likely would be overturned by federal courts. “I don’t think the current Supreme Court would buy it, but if the Left gets another appointment that could change,” he said.
A spokesman for the board did not respond to a request for comment.
