Is the Union-Security Clause in Your Collective Bargaining Agreement Lawful?
By: RICHARD A. ROSS
August 1998
Virtually every collective-bargaining agreement contains a union-security clause. Typically, it provides that all employees must become and remain union members in good standing during the duration of the agreement. Good standing is usually defined as payment of periodic dues and initiation fees. The provision also states that an employee who fails to pay union dues or initiation fees must be discharged by the employer at the union's request.
More than 10 years ago, however, the United States Supreme Court, in Communication Workers of America v. Beck, held that employees do not have to pay "all" of the union dues in order to remain employed. The Court held that employees, if they chose, could become what are called "service fee" members instead of union members. This meant that the individual only had to pay the proportionate percentage of the dues that was used for "representational" purposes, such as collective bargaining negotiations, grievance and arbitration proceedings. Service fee members did not have to pay the proportion of the dues which was "non-representational," including political, educational or lobbying contributions.
The National Labor Relations Board (NLRB) has since held that unions must inform members of this choice; if an individual chooses to be a service fee payer, the union must perform an annual audit to determine the percentage of dues that is used for representation purposes and charge only that amount.
Needless to say, unions have not been enthusiastic about the Beck decision. Unless an employer raises the issue at collective-bargaining negotiations, the existing union security clause is rarely changed. As a result, most union security clauses are not enforceable. In a fairly recent decision, the NLRB upheld the lawfulness of a newly negotiated provision to replace one which was unlawful. In this case, Group Health Inc. and Office and Professional Employees Local 12 and Gary Bloom, the NLRB found the following language to be consistent with the Beck decision:
All Employees of the Employer subject to the terms of this Agreement shall as a condition of continued employment, become and remain members in the Union, and all such Employees subsequently hired shall become members of the Union within thirty-one (31) calendar days, within the requirements of the National Labor Relations Act. Union membership is required only to the extent that Employees must pay either (i) the Union's initiation fees and periodic dues or (ii) service fees which in the case of a regular service fee payer shall be equal to the Union's initiation fees and periodic dues and in the case of an objecting service fee payer shall be the proportion of the initiation fees and dues corresponding to the proportion of the Union's total expenditures that support representational activities.
If your company has any collective bargaining agreements, you should consider raising the union security clause issue at your next negotiations. While the union is likely to object, it must bargain in good faith. The benefit of revising the clause is to give the employees more choice in how dues are spent. Consult with your labor attorney prior to negotiations to understand these issues and how to approach the negotiations.