Last year the Supreme court in its infamous Janus decision eliminated a public sector union’s right to
charge an agency fee to a person who did not wish to be a member of the union. This year, the National Labor Relations Board is following suit and making it more difficult for private sector unions to require non-members to pay their fair share of union expenses that are incurred to benefit every member of the bargaining unit. In United Nurses and Allied Professionals, the Board ruled on March 1, 2019, that lobbying expenses incurred by a union relating to terms and conditions of employment of bargaining unit members are not chargeable to a Beck objector. A Beck objector is a person who refuses to be a union member but still must pay a sum less than full union dues reflecting the union’s percentage of expenses for engaging in collective bargaining. In United Nurses, for example, the Board ruled that lobbying for a law that would raise minimum wages, or limit mandatory overtime, was not chargeable to a Beck objector, even if it directly pertained to his position.
In United Nurses the Board also ruled that when a Beck objector asks for the calculation showing how much he must pay that absent the union giving the objector a statement from its accountant certifying the calculation as being the product of his audit, it violated the union’s duty of fair representation. Such a charge opens the union to damages if the employee refuses to pay and requires the employer to enforce the union security clause by terminating him.
The week before, the Board’s General Council directed the NLRB’s Region Directors to issue complaints against unions failing to tell employees when they are first signing a dues authorization card about the specific amount they will not have to pay if they refuse to join and assert their Beck rights. Until now, the union was only required to advise the employee of the amount calculated under Beck, but now without an accountant’s certification the law is being violated.
Additionally, the General Counsel is ordering complaints to be issued against unions where a window period for seeking revocation is tied to the expiration date of the collective bargaining agreement because it “may” interfere with the right of an employee to revoke his authorization after the CBA expires. Sometimes there can be a gap between the effective date of the old and the new CBAs and the GC does not want a union to be able to take advantage of the fact that the employee failed to timely file the revocation request during the window. Moreover, as most dues deduction cards do provide for an annual window period, the GC is ordering complaints whenever an untimely revocation request is made, and the union fails to either tell the employee about the date of the next window or that it will honor the request at the beginning of the next window.
The GC also directs that a complaint be issued against a union if it requires that the request to withdraw must be made by certified mail.
The GC’s view of the law is not yet law while the Board’s decision is. Unions should consult their attorney whenever receiving a refusal to join, or a request for Beck status, or before enforcing the union security clause in their collective bargaining agreements. These are highly technical areas of the law and any mistake can open the union to significant money damages.
Clearly, the anti-union Trump appointees at the Labor Board are trying to make it ever more difficult to enforce their rights to enforce fair share arrangements. They are trying to cut off private sector unions from their financial support and thereby hobble them from representing workers with their employers and with the government.
*Larry Cary is a partner in the New York labor Law firm of Cary Kane. He has represented unions for 35 years.
