Non-Union Employees - Module 3 of 5

Module 3: Non-Union Employees

Labor unions provide many benefits for workers. However, the vast majority of workers in the United States are not union members, and an increasing number of employees are opting out of union membership. In this module, we’ll discuss the nuanced relationship between labor unions and non-member employees within a unionized workforce, particularly with respect to whether and when an employee may be compelled to participate in union activities despite not being a member of the organization.

Safeguarding the Union Election

The National Labor Relations Act regulates the relationship between employees, employers and unions. The law prohibits employers and unions from interfering, directly or indirectly, with employee rights.  The law also prevents unions from using unfair or coercive tactics to recruit new workers to their ranks. Sections 8(a) and (b) of the Act govern unfair labor practices for employers and labor organizations, and Section 8(c) regulates the collective activity of employers and labor organizations.[1]

The Act protects employees - union members and non-union members - who engage in protected concerted activities to resolve workplace issues from being punished for their activism. Such “concerted” activity is protected (unless malicious or reckless) when it involves the concerns of more than one employee.[2] This is to encourage employees to raise workplace concerns as a group rather than on a piecemeal basis. The law also protects concerted activity to prevent employers from deterring employees from considering forming or joining a union. Without this protection, employees could be subject to disciplinary measures for any collective conversations about forming or joining a union, or even trying to change workplace policies.[3]

The Act bars employers from interfering with employees’ rights to organize, join, assist with or engage in unions. It is also illegal for employers to start their own unions or control workplace unions. Companies may not replace striking workers who are protesting unfair labor practices, nor may they act against employees for the purpose of interfering with the choice of union membership status. The Act also forbids an employer from retaliating for union membership or discriminating against employees because of union membership. Likewise, it requires good faith in collective bargaining and punishes employers that refuse to bargain in good faith with union representatives.

By the same token, employees considering union membership are also legally entitled to be free from being coerced to join a union. The Act prohibits union attempts to force, restrain or coerce employees into supporting the organization.

Laws Regulating Union Membership

The type of “shop” at a particular workplace determines the extent to which an individual must be involved with a union to work a particular job. There are four types of shops in unionized workplaces: open shop, closed shop, union shop and agency shop.

When Congress first passed the National Labor Relations Act, employers were permitted to require employees to become union members as a condition of employment. These arrangements were known as “closed shops.” They often took the forms of agreements between the employer and union that required the employer to hire only union members, so that anyone not willing to join the union could not be hired. In contrast, “open shops” require the union to represent the entire bargaining unit, regardless of whether all the employees are members of the union.[4]

In union shops, employees cannot be initially required to belong to a union but would be required to join the union within a specified time period from the hire date, usually within 30 days. Under a union shop arrangement, an employer can fire an employee for failing to maintain membership, such as by neglecting or refusing to pay union dues.

Agency shops require employees to pay union dues and fees, whether or not they were hired as union members. This is because the labor union serves as the collective bargaining agent for the entire workforce.[5] The dues cover the costs of activities related to collective bargaining, contract administration and grievance adjustments. However, non-member employees do not have to pay the dues on the other responsibilities of the union, such as the organizing and political activity. A non-member employee who is paying the union fees may also object to funds being spent for a particular purpose or a particular activity. In these cases, unions calculate the portion of the total budget going to political activities and refund that portion to the non-member employee from the union fee.[6]

In some cases, the Act allows unions to negotiate union-security agreements with employers. Union-security agreements require employees to make payments to the union to maintain job security. To comply with federal labor laws, they must be carefully tailored to be fair to nonmembers. For example, union-security agreements cannot require union membership as a condition of hiring, nor can they require employees to maintain union membership to keep their jobs.[7]

Right-to-Work Laws

Today, most jurisdictions follow the open shop approach to labor relations between unions and non-members. The Taft-Hartley Act prohibits closed shops and allows individual states to pass laws prohibiting union shops and agency shops within their borders. State laws limiting compulsory union participation are known as the “right-to-work” laws.  

More than half of the states have enacted right-to-work laws, which provide that no person can be compelled to join a union or pay union dues as a condition of employment.[8] These laws vary in scope, and some include limitations on agency shops that require the payment of dues while many ban “union shops” that coerce membership.[9] Generally, if a worker lives in a “right to work” state, he has the right to refrain from becoming a union member, paying union dues or making other commitments in support of a union.[10]

In states with right to work laws, unions may still encourage membership and participation in other ways. For example, unions often organize “hiring halls” to recruit new workers for employers with which they have collective bargaining agreements. Sometimes, employers negotiate exclusive hiring agreements with a union. This requires the union to manage the hiring hall in an especially careful way because the National Labor Relations Act prohibits discriminating against non-member employee candidates. So, while they can play-up their agreements with employers and encourage people to join the union, they cannot shut out nonmembers.

Still, even under the NLRA’s non-discrimination rule, in states without right-to-work laws, non-members may be required to pay fees to the union to obtain work through its exclusive hiring hall. These fees are not dues, but rather proportional shares of what the union can prove is the cost of operating the hiring hall.[11] The National Labor Relations Act does not limit the fee a union can charge members, but does require the fees to be “reasonable” and not excessive.[12]  Also in the absence of a right-to-work law, non-members typically must pay union dues used for collective bargaining, contract administration, and grievance adjustments after obtaining a job through the union’s hiring hall. In fact, these fees are not universally prohibited by right-to-work laws, and so may be applicable even in some states with such laws.[13]

In states without right-to-work laws, workers are often required to pay at least some reduced fee to unions. Unions’ rights to demand these payments within eligible jurisdictions were affirmed by the Supreme Court in the 1988 case Communications Workers of America v. Beck. The Court held that the National Labor Relations Act allows unions to require non-union members to pay their fair shares of what the union can prove it spends on collective bargaining, contract administration and grievance resolution because these activities benefit the entire workforce.[14]

Union Benefits Afforded Non-Members

The National Labor Relations Act both empowers unions and protects the rights of nonunion members. Unions must inform workers that they have the right to not be members. Moreover, nonmember workers are entitled to raise issues against the union in federal court or the overseeing administrative agency for alleged breaches of the duty of fair representation.[15]

However, labor unions may provide services that are only available to members. For example, unionized employees have the right to union representatives when disputes arise between the employee and employer. A representative can provide the employee advice or clarification or other support after an employer-employee meeting. If there is a valid claim under the National Labor Relations Act against the employer, the representative can work with the employee to file a complaint or grievance against the employer, which can be appealed to the National Labor Relations Board if necessary.[16]

In fact, labor unions sometimes provide resources for workers that are so important for dealing with employer-employee conflict that fairness requires that they be extended to the entire workforce. However, whether and when unions should be forced to support non-members – and, vice versa, whether and when non-members should be forced to support unions – is a more nuanced inquiry than it may seem at first blush.

Consider the example of NLRB v. J. Weingarten, Inc., in which the Supreme Court upheld a decision by the National Labor Relation Board that extended certain rights to non-union employees during the course of investigatory interviews for disciplinary actions.[17] The so-called Weingarten rights ensure employees the right of union representation during investigatory interviews and establish the procedures for when and how union representatives may participate in disciplinary investigations. In 2000, the National Labor Relations Board extended the Weingarten rights to all employees, members and non-members alike, out of concern for the impacts the exclusion of non-members may have on workplace fairness. However, in 2004, the Board reversed itself, and under current policies only union members are entitled to Weingarten rights.[18]

The Free-Rider Problem

Beyond direct representation, labor unions provide benefits to non-members by leveraging the power of collective bargaining to negotiate workforce-wide employment contracts that improve compensation and conditions for all workers. These circumstances create what is known as a “free-rider” problem: a type of economic failure that occurs when individuals who do not participate in certain activities still benefit from them. The free rider problem creates economic and social problems by discouraging beneficial collective action.  In these cases, there is no incentive to contribute to the collective action that is causing the benefit; rather, one can receive the benefit without putting in the effort necessary to create it.[19]

To mitigate the efficiency and fairness issues caused by this free-rider problem, lawmakers have established detailed policies that define the relationship between labor unions and non-member employees within the unionized workforce. However, in the absence of laws and policies addressing the details of the relationship, collective bargaining agreements govern the obligations of the respective parties.  

A union’s collective bargaining agreement usually contains the type of “shop” that covers the workplace as well as many other substantive terms that affect the rights of non-members. Millions of workers who have elected not to join unions are still covered by collective bargaining agreements negotiated by a labor organization. While many of these people will be required to pay bargaining-related fees and dues to the union that negotiated on their behalf, most of the non-union members covered by collective bargaining agreements who live in right-to-work states will not. Furthermore, non-members are not bound to the union’s policies regarding strikes and picketing. As a result, many non-members at a unionized workplace can inhibit the union’s ability to bargain with management by undercutting funding opportunities and the union’s ability to mobilize the workforce in response to a grievance.[20]  

In most jurisdictions, unions may mitigate the impacts of the free rider problem in a number of ways. For example, if an employee is not a member of a union but has paid union fees, he is only eligible for a limited number of workplace protections included in the union contract. This means that a non-member may receive wage and hour benefits, but not necessarily broader protections pertaining to disciplinary processes. This form of coverage is legal so long as the worker it is not located in a right-to-work state. However, if a union refuses to represent an employee or enforce an employee’s rights under the union’s contract, the employee can file a claim against the union for violation of its duty of fair representation within six months of the union activity.  

An employee has two options when filing a claim against the union for a violation of its duty of fair representation: either sue the union directly in court or file a claim with the National Labor Relations Board. Regardless of the venue, the burden is on the employee to show that the union acted in an arbitrary manner or with bad faith. The claim will not be successful if it is based on the union’s negligence or ineptitude; rather, the NLRB considers only whether the union can explain the reasoning for its conduct, whether the situation left the employee without a due process hearing or remedy and whether the union deviated from its traditional practices for dealing with similar situations.[21]

In Abrams v. Communication Workers of America, the federal appellate court for the District of Columbia Circuit held that unions have the obligation to serve the interests of all members without discrimination, to exercise discretion with good faith and honesty and to avoid arbitrary conduct. The court reviewed a complaint from a non-union member in a unionized workplace that had a collective bargaining agreement in place requiring all non-members to pay dues equal to the union members. To avoid paying union expenses unrelated to the collective bargaining and worker representation, a non-member had to affirmatively object to the amount of his dues. The court found this arrangement unreasonably coercive, as the union required non-members to pay for internal union activities without the opt-out. The D.C. Circuit also emphasized that the union exercised absolute discretion on any non-members’ objections, which made the process moot.[22]  

Conclusion

There are many reasons a person would elect not to join a union. Other than religious or personal objections to organized labor, a non-union member is not subject to the unions’ rules and discipline procedures.[23] As a result, if the union goes on strike, non-members would not be subjected to the disciplinary rules that apply to union members who cross the picket line. Depending upon the terms of the collective bargaining agreement, even non-union members may be subject to fines from the union for certain activities.[24] Regardless, if a union negotiates a collective bargaining agreement for an entire workforce, both members and non-members benefit. Collective bargaining is discussed in greater detail in the module that follows.