A Partial Fix for the Right-to-Work Problem?
As Brian Mahoney at PoliticoPro reports, the Board today invited briefing on the question of whether unions should be permitted to charge non-members a fee for processing grievances. Under Machinists, Local No. 697, 223 NLRB 832 (1976), such a fee is impermissible, but today’s call for briefs asks whether the Board should overrule the Machinists decision. It should.
The problem with the Board’s rule is that it allows workers, in right-to-work states, to demand individual representation from the union (for example in grievance proceedings) while refusing to pay anything for that representation. There is no seeming rationale for this inequity, and nothing in the federal labor law nor in state right-to-work laws requires it. If unions are prohibited from collecting fair share fees, they should at a minimum be permitted to charge workers for the costs of individual grievance representation.
Abandoning the rule of Machinists Local 697 is a move that Catherine Fisk and I argue for in our paper Restoring Equity in Right to Work. As we write there:
[W]e propose that the National Labor Relations Board (NLRB or Board) abandon its rule forbidding unions from charging nonmembers a fee for representation services that the union provides directly and individually to the nonmember. Under the Board’s current rule—which is dictated neither by statute nor judicial interpretation—a union violates section 8(b)(1)(A) of the federal law if it insists that nonmembers pay for representation in disciplinary matters, even in right-to-work states where the nonmember has a right not to pay for the union’s representation generally.15 We believe that in right-to-work states, it ought to be within a union’s discretion to charge nonpaying nonmembers if those nonmembers wish to have the union represent them in disciplinary matters. Unlike the NLRB, we do not believe that charging an employee the fair price of a union service coerces that person, within the meaning of section 8(b)(1)(A), to become a union member or restrains his or her ability to refuse to support the union.