The Building Tradesman Newspaper

Friday, May 15, 2015

NLRB to tackle end-to-‘free riders’ case

By The Building Tradesman

By Mark Gruenberg
PAI Staff Writer

WASHINGTON (PAI)—In a case that could give so-called “right to work” laws and that anti-worker movement a huge kick in the head, the National Labor Relations Board is tackling whether “free riders” – which the laws authorize – should keep getting something for nothing.

The case pits the Steelworkers, and specifically some of its Paper Workers members, against the huge papermaker Georgia Pacific Corp., and its Buckeye Florida Corp. subsidiary.  The board called for briefs, due by June 1, whether free riders would have to pay any union, case by case, to handle free riders’ grievances.  Replies are due two weeks later.

The board wants all sides and their allies to address whether, in an open shop, unions must still process grievances and represent non-member workers for free.  And if the board decides to let unions charge the non-members fees for processing individual grievances, it wants to know what factors should determine the level of those fees.

The case is important both to unions and their foes, far beyond the 1.576 million free riders that government figures reported for 2014. Dues from the nation’s 14.58 million union members support them – and the cost of representing the free riders drains unions.

In the 25 non-right-to-work states, unions may bargain and win the right to charge non-members (except for home health care aides) “fair share” fees to cover the costs of contract negotiations and administration, including grievances.  In the 25 right-to-work states, unions can’t even charge fair share fees to any free riders.  But they still must represent them.

The right wing’s stated goal of right to work is to ensure that no worker has to pay for union services, even under a contract.  Its real goal is to use right to work to starve unions to death financially, thus eliminating organized worker opposition to corporate hegemony.

In the Florida case, NLRB administrative law judge William Cates ruled on March 24, 2014 that Buckeye, in its contract with Steelworkers Local 1192, broke labor law “by maintaining and implementing a 'Fair Share Policy' requiring non-member bargaining-unit employees to pay a grievance-processing fee.”

The case asks the board to reverse course and “adopt a rule allowing unions to charge non-members a fee for grievance processing, so long as that fee does not exceed the amount a union could charge non-member objectors” to union spending for non-bargaining and non-contract uses, such as politics. 

Until now, the case for letting unions not represent non-members at worksites with union contracts has been an academic debate.  “There is no seeming rationale for this inequity, and nothing in the federal labor law nor in state right-to-work laws requires it,” say Harvard Law Professor Benjamin Sachs and UC-Irvine Law Professor Catherine Fisk, authors of the most-comprehensive paper on the issue.  Their paper presents three alternatives to current practice.

“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,” the professors add.  That’s what the NLRB case is about, and it’s one potential solution Sachs and Fisk recommend about the free-rider problem. 

“We propose the NLRB abandon its rule forbidding unions from charging non-members a fee for representation services the union provides directly and individually to the non-member. Under the board’s current rule -- dictated neither by statute nor judicial interpretation --  a union violates… the federal law if it insists non-members 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. 

“In right-to-work states, it ought to be within a union’s discretion to charge non-paying non-members if those non-members 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…to become a union member or restrains his or her ability to refuse to support the union.”                   

“Federal labor law implements a regime of exclusive representation,” their paper says. “Importantly, although the union represents all workers in a bargaining unit, no worker need actually become a member” in either right-to-work states or non-right-to-work states. 

Their second alternative lets unions dump the free-riders entirely.

The law professors’ paper says if unions can’t charge the non-members for representing them, the non-members shouldn’t be under the contract at all – and they would be on their own, employee by employee, in bargaining with their employers and in defending themselves.  Unions would not have to undertake the “duty of fair representation” for non-members.

Third alternative is to use section 14(b) of the GOP-passed 1947 Taft-Hartley Act – the section that allows state right to work laws – to let unions charge a proportional share of nor-mal dues, enough to cover grievances and arbitrations, to non-members in right to work states.

Sachs and Fisk say “a proper reading” of 14(b) shows states can ban the union shop and ban making payment of union dues a condition of holding a job in that union shop. “But states cannot, consistent with federal law, prohibit agreements under which non-members are compelled to pay dues and fees lower than those required of members,” their paper says.

So 14(b) means “the pro rata share of membership dues that go to grievance and arbitration costs must be legal everywhere in the United States,” they contend.

“Duty of fair representation extends not just to collective bargaining -- in which the union cannot bargain terms that favor members over nonmembers -- but to disciplinary matters as well.  The union must grieve and arbitrate on behalf of non-members just as zealously (and as expensively) as it does on behalf of members,” the two said.  It should be able to charge non-members a proportional share of dues, to cover the grievance and arbitration costs.