In non-right to work states, an employer and a union may lawfully agree to include a "union security" provision in their labor agreement. This clause requires all employees to become a member of the union. If an employee refuses to join the union, the contract typically requires the employer to terminate that employee.
Many years ago, however, the U.S. Supreme Court, in the Beck decision, ruled that the "membership" that may be required under the union security clause is simply the "financial core" of union membership: paying money to the union to provide representation of the employee in their employment relationship with the employer. An employee didn't have to pay for other activities of the union that were not related to this representational function. The practical effect of this objection right for the employee, therefore, is to reduce the cost of union dues, with a corresponding reduction in dues income to the union.
To exercise the right to avoid "full" membership in a union, an employee must object. Many unions have developed procedures to handle these objectors. These procedures can sometimes require objectors to renew their objections on a periodic basis, such as annually.
Recently, the NLRB decided International Union, United Automobile, Aerospace & Agricultural Implement Workers of Am. Local Union # 376 (Colt's Manufacturing Co.), 356 N.L.R.B. No. 164 (May 27, 2011). At issue was a union's procedure for objectors which required that the employee renew their objection to full union membership every 12 months. The UAW's procedure provided notice of this right to object in a bimonthly magazine. If an objection was received, the UAW would acknowledge receipt with a letter, which told employees their objection would expire in one year, but that they could renew the objection during a 30-day window period prior to the one year mark. The union also sent a reminder letter to the employee 15 days before the one year period expired. If they failed to renew, the employee would automatically begin paying full dues. But, the employee could thereafter file an objection, which would again be honored for one year.
The NLRB, in a 2-1 decision, held that this procedure was permissible. Analyzing the facts under a duty of fair representation standard, the NLRB found that the burden on an objecting employee's rights was minor. First, the NLRB noted that the union sent out a number of letters to the employee that highlighted the one year time limit and the need to renew the objection. Second, although there was a 30-day window period, if an objection was received outside of that period, it was still given effect for a full twelve months.
Member Hayes, again writing a lone dissent, came to a different conclusion. He relied upon three points:
- The burden on the employee was substantial as it imposed an affirmative obligation to renew an objection at the risk of forfeiting, even for a short time, the employee's legal right to refrain from subsidizing non-representational activity.
- The requirement was discriminatory, and hence a violation of the union's duty of fair representation, because the annual renewal requirement was imposed only on those employees who want to refrain from full membership; there was no annual renewal obligation for those joining the union.
- The annual renewal obligation was a form of coercive interrogation of those employees who objected to the payment of full union dues.
The NLRB's decision will primarily interest those labor professionals working in a unionized environment. What it means is that employees in the bargaining unit who do not want to pay for the union's activities that are not related to representation will need to make even more of an effort to maintain that status. As the facts of Colt's Manufacturing itself suggest, it is questionable whether employees will do so. The two employees who filed charges against the UAW both wanted to remain objectors for a long term. One wanted to remain an objector for three years and the other "until the UAW is decertified." After going through the UAW's process, however, there was no evidence presented that either employee continued to object.