When a union is established in a workplace, it becomes the exclusive representative of all employees in a bargaining unit, even the ones who did not vote for or desire union representation. Often, these nonunion employees must pay union dues or fees to cover the costs of this representation or else lose their jobs.
However, a number of U. S. Supreme Court decisions and legal provisions have guaranteed to these employees the right to abstain from membership or resign from their union, the right to limit their dues payments to specific purposes, and the right to raise religious objections to union membership.
Many unions do not inform workers of these rights because they do not wish to forfeit the dues that union coffers would otherwise receive from workers compelled to pay them. Below is a brief discussion of each of these important workplace rights.
Right to Resign Union Membership or to Not Join a Union
The U. S. Supreme Court has ruled that private-sector employees have the right to refuse membership in their workplace unions, even though the language of their labor contract may state otherwise.47 Each worker has the legal right to resign from his union and cease to be bound by its constitution and by-laws which may require participation in strikes and other activities.
This does not mean, however, that the worker is exempt from the other provisions of the labor contact between the union and the employer that specify the terms and conditions of employment. In other words, even if a worker resigns from his union, he must still abide by the union-negotiated work rules in the contract.
The "cost" to an employee who declines full union membership is that he will be unable to participate in important union activities such as voting in elections, voting for a new labor contract, voting to engage in strike activity, and so forth. Benefits of nonmembership include being free of union fines and rules, such as those prohibiting members from crossing a valid union picket line.
Nonmember workers also may exercise their right not to pay dues for their workplace union's political or other non-workplace-related spending, which may add up to several hundred dollars each year.
Right to Freedom of Speech
Unions spend the dues collected from their members on a number of different things, including activities that exceed the realm of employee representation activity. U. S. Supreme Court decisions have firmly established that private-sector and government employees who decline union membership have a legal right to choose not to pay the portion of their dues that is used for non-workplace-related expenditures.
In other words, although nonunion member workers may be forced under contract to financially support their workplace union, they cannot be forced to pay for that union's political activities, public relations campaigns, or other activities not related to the core purposes of collective bargaining.
The Supreme Court has ruled that forcing government employees to financially support their unions' political activities was a violation of their right to freedom of speech. In Abood v. Detroit Board of Education, the Court held that it was a violation of the First and Fourteenth Amendments for a government employee union to use the fees collected from a nonmember employee for political and ideological purposes unrelated to collective bargaining to which the nonmember objected.48
Another Supreme Court decision, Chicago Teachers Local 1 v. Hudson, established the ground rules for determining the appropriate fee payments of objecting nonmembers by imposing procedural requirements on the union:
The constitutional requirements for the Union's collection of agency fees include an adequate explanation of the basis for the fees, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decision maker, and an escrow for the amounts reasonably in dispute while such challenges are pending.49
While the Hudson case involved a government employee union and was decided on First Amendment grounds, the procedures and principles outlined above should fundamentally apply to private-sector arrangements under the NLRA50 and the Railway Labor Act,51 which governs railroad and airline labor relations.
Private-sector workers have similar protections against union coercion. In its 1988 decision in Communications Workers of America v. Beck,52 the Supreme Court ruled that for workers covered by the NLRA, the obligation to pay dues is limited to support of union activities "germane to collective bargaining, contract administration, and grievance adjustment."53
The Court ruled in this case that it was illegal for the union to collect dues from objecting employees to spend on organizing employees of other employers, lobbying for labor legislation, or participating in social, charitable, and political events. These expenditures constituted a significant chunk of worker dues: An examination of the union's financial records in Beck discovered that 79 percent of the dues it normally collected could not legally be charged to objecting nonmembers.
While each of these three major Supreme Court decisions deals with government, private, and railroad and airline employees, the principles are essentially the same, even if the statutory and constitutional texts and theories are different. The costs of union political activities may not be charged to objecting nonmember workers under any view of the law.
Private-sector workers who object to paying dues for non-workplace-related union activities can also exercise their rights under the unfair labor practice procedures of the NLRA. When a union commits an unfair labor practice, the aggrieved worker may petition the National Labor Relations Board (NLRB) to force the union to cease and desist from violating employee rights.
In California Saw & Knife Works, the NLRB's lead case explaining Beck rights, the board held that when nonmembers object to the union's use of monies they are required to pay under a union security agreement, the union must reduce the fees by excluding any non-chargeable expenses.54 The union was further made to notify these objecting employees of the subsequent percentage decrease in their fees and specify "the basis for the calculation, and the right to challenge these figures."
Precedent established by California Saw further requires unions to provide objecting nonmembers with sufficient information so that they can intelligently decide whether to challenge the union's dues calculations. Under California Saw, unions are required to provide objecting nonmembers with a breakdown of their calculations by major categories of expenditures, designating which categories it claims are chargeable and non-chargeable to the objectors. If a union fails to do these things, it commits an unfair labor practice.
In Production Workers Local 707, the NLRB held that a union that spent employees' money collected under a union security agreement on activities unrelated to collective bargaining, contract administration, or grievance adjustment violated the NLRA. In this case, the union had the employer discharge three employees who were delinquent in payment of union dues. The union, however, did not give employees notice of their rights under Communications Workers of America v. Beck to object to its non-workplace-related expenditures.55 In the absence of such notice, the NLRB ruled that the union could not seek to enforce the union security agreement by causing the discharge of employees in order to obligate them to pay dues and fees under the agreement.56
The practical significance of these cases is that a dissenting employee whose rights under the Supreme Court's Beck decision are being ignored by his employer or union may have an avenue of redress through the unfair labor practice process of the NLRB. Such an employee may file an unfair labor practice charge at the nearest NLRB regional office, and the government will then investigate the matter. If the employee's claim has merit, the government will seek a remedy on his behalf in a timely and cost-effective manner. This method is probably the least costly way in which an employee can hold a union accountable for Beck violations.
State labor agencies such as the Michigan Employment Relations Commission tend to pattern their decisions after NLRB developments. It may therefore be possible for a dissenting municipal or local government employee to file an unfair labor practice charge against his union to seek enforcement of his dues rights under Hudson, Lehnert, and other Supreme Court decisions applying to government employees.
Right to Freedom of Religion
Health care workers who have deeply held religious objections to becoming members of a union, or supporting a union financially may be exempt from paying dues and initiation fees. These employees may, however, be required to pay sums equal to union dues and initiation fees to a tax-exempt organization of their choosing, provided that it is neither religious nor union-affiliated. Unions representing religiously objecting health care employees may, however, charge them the reasonable cost of any grievance processed at their behest.57