The NLRA prohibits interference with an employee’s right to engage in concerted activity or to “refrain” from it. An important exception in the NLRA that allows interference with an employee’s right to “refrain” is application of a lawful union security provision in non-right-to-work states. Such a provision allows an employer and union to take adverse action against an employee who refuses to join the union or pay an amount equal to a fair share of dues and fees. This safe harbor to interfere with Section 7 rights and “discriminate” against non-union members generally is illegal in right-to-work states, and as we have reported, the number of right-to-work states is growing, most recently including Wisconsin, Michigan, and Indiana, which had traditionally been union strongholds.

Now, the NLRB has indicated that it may want to start letting unions charge non-dues-paying employees for grievance processing services. Under nearly all collective bargaining agreements, the union controls the grievance and arbitration process, theoretically on behalf of an employee, and the employee must use the union to process any covered dispute the employee has against the employer even if the employee is not a union member. The Board’s current rule is that a union cannot charge such fees unless there is a valid union security clause, which generally would be illegal in a right-to-work state. The Board is requesting amicus briefs on the subjectin a case from Florida (a right-to-work state) involving the United Steelworkers Union and a subsidiary of Georgia-Pacific. Commentators and observers of the Board have seen that a request for briefs usually signals the Board’s intent to change the current rule.

The National Right to Work Committee and its National Right To Work Legal Defense Foundation view the anticipated change in position as a “frontal attack”on the freedom against discrimination that right-to-work laws are intended to protect. According to a statement on the Committee’s webpage, “the NLRB wants to force non-members to pay for this forced unionism power.” One thing is certain: if the Board does change the rule, the change will be challenged in court.