Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations. He is also faculty director of the Center for Labor and a Just Economy. Professor Sachs teaches courses in labor law, employment law, and law and social change, and his writing focuses on union organizing and unions in American politics. Prior to joining the Harvard faculty in 2008, Professor Sachs was the Joseph Goldstein Fellow at Yale Law School. From 2002-2006, he served as Assistant General Counsel of the Service Employees International Union (SEIU) in Washington, D.C. Professor Sachs graduated from Yale Law School in 1998, and served as a judicial law clerk to the Honorable Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit. His writing has appeared in the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the New York Times and elsewhere. Professor Sachs received the Yale Law School teaching award in 2007 and in 2013 received the Sacks-Freund Award for Teaching Excellence at Harvard Law School. He can be reached at [email protected].
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.
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December 13
In today’s News & Commentary, the Senate cleared the way for the GOP to take control of the NLRB next year, and the NLRB classifies “Love is Blind” TV contestants as employees. The Senate halted President Biden’s renomination of National Labor Relations Board Chair Lauren McFerran on Wednesday. McFerran’s nomination failed 49-50, with independents Joe […]
December 11
In today’s News and Commentary, Biden’s NLRB pick heads to Senate vote, DOL settles a farmworker lawsuit, and a federal judge blocks Albertsons-Kroger merger. Democrats have moved to expedite re-confirmation proceedings for NLRB Chair Lauren McFerran, which would grant her another five years on the Board. If the Democrats succeed in finding 50 Senate votes […]
December 10
In today’s News and Commentary, advocacy groups lay out demands for Lori Chavez-DeRemer at DOL, a German union leader calls for ending the country’s debt brake, Teamsters give Amazon a deadline to agree to bargaining dates, and graduates of coding bootcamps face a labor market reshaped by the rise of AI. Worker advocacy groups have […]
December 9
Teamsters file charges against Costco; a sanitation contractor is fined child labor law violations, and workers give VW an ultimatum ahead of the latest negotiation attempts
December 8
Massachusetts rideshare drivers prepare to unionize; Starbucks and Nestlé supply chains use child labor, report says.
December 6
In today’s news and commentary, DOL attempts to abolish subminimum wage for workers with disabilities, AFGE reaches remote work agreement with SSA, and George Washington University resident doctors vote to strike. This week, the Department of Labor proposed a rule to abolish the Fair Labor Standards Act’s Section 14(c) program, which allows employers to pay […]