On April 16, 2015, the National Labor Relations Board (NLRB) quietly issued a request for amicus briefing in a case it is currently waiting to decide on appeal. The case involves the question of whether a union can charge dues to employees in a “right to work” state who choose not to join the union. In recent years, Michigan and Wisconsin, two formally pro-union states, have passed Right to Work laws under Republican governors (bringing the total to 25 states), and the trend threatens to severely weaken unions across the country. 

The legal question arises out of the conflict between the union’s duty of fair representation and the state right to work laws. In a right to work state, an employee can choose not to join a union, but the union is nonetheless bound to represent the employee under the National Labor Relations Act. Unions claim it is unfair for employees to refuse to pay dues, then expect the union to represent them for free in an arbitration, for example, if they are terminated.

A link to the NLRB’s request for briefing on this issue can be found here. Obviously, given the leanings of the current NLRB, it would appear that a new rule is coming, which would allow unions to require some form of payment in exchange for representation. The big question is whether that rule will mandate full-blown dues (which would defeat the right to work law altogether) or some sort of “pay as you go” fee in exchange for union representation in grievances or arbitration. If the NLRB chooses to change the decades old federal precedent in this area, it will certainly have a huge fight on its hands in the form of an appeal to federal court.