September 15, 1997
The Myth of Compulsory Union Membership
by
Charles W. Baird
Unions want all workers to think that a union and an employer can agree to force all the workers who are represented by a union to join it as a condition of continued employment. Such union-employer agreements are called "union security" clauses in collective bargaining agreements.
For example, Weyerhaeuser Paper Co. and the United Paperworkers International Union (UPIU) have a union security clause that requires all present maintenance and production employees to "become and remain members of the union in good standing" as a condition of continued employment. It also requires all new employees to "become and remain members of the union in good standing" after a thirty day probationary period or else they will be fired. That seems pretty clear. If a worker doesn't join the union, he or she will not be employed by Weyerhaeuser. But, as Roland Buzenius proved in a Sixth Federal Circuit Court of Appeals decision on September 8, 1997, that is NOT what the clause means. If it were, it would be illegal.
It is well known that in the twenty-one right-to-work states all forms of union security are banned. In those states workers can be forced to have a union (selected by majority vote) represent them, but they cannot be forced to join or pay dues to any union. But in the twenty-nine other states - e.g., California - union security clauses are permitted, and they are usually worded like the Weyerhaeuser clause. Unions routinely try to use these clauses to dupe workers into thinking that full membership in good standing can be compelled.
Word games have always been a large part of labor relations law. Section 8(a)3 of the National Labor Relations Act (NLRA) says that it is "an unfair labor practice for an employer by discrimination in regard to hire or tenure of employment ... to encourage or discourage membership in any labor organization." By itself, that would make union security clauses illegal. However, Section 8(a)3 goes on to say, "Provided, that nothing in this Act ... shall preclude an employer from making an agreement with a labor organization ... to require as a condition of employment membership therein ...." In other words, employers cannot encourage membership in a union, they can only compel it. Such is the stuff of laws designed to serve special interests.
The proviso of Section 8(a)3 would seem to make union security clauses that require membership legal. Not so, says the US Supreme Court. In 1963, in NLRB v. General Motors Corp., the Court said that required membership is limited to its "financial core." That means that the only thing a union can require of the workers it represents is the payment of union dues and initiation fees. No other obligations of membership in good standing can be imposed. In 1985, in Pattern Makers' League v. NLRB, the Court said that any union member in good standing could resign his or her membership at any time for any purpose without giving any notice, and become a financial-core represented worker. Finally, in 1988, in Communication Workers of America v. Beck, the Court said that a worker could be compelled to pay only that portion of union dues and initiation fees that is used by a union for collective bargaining, contract administration and grievance procedures. No worker can be compelled to pay any dues used for such things as politics, lobbying, and union organizing. On average unions spend only 25 percent of their dues on the three activities for which they may collect forced dues.
So "membership in good standing," as that term is usually interpreted, cannot be compelled in any of the fifty states. All that can be required, in the twenty-nine states that have not banned all forms of union security, is that workers represented by a union pay partial dues. Any worker that is an ordinary union member paying full dues can resign that membership at will, and become a partial dues, financial-core represented worker. Obviously, unions do not want workers to know this.
This brings us back to Weyerhaeuser and Roland Buzenius who tried to resign his membership in UPIU. The union ignored his resignation, continued to collect full union dues from his paycheck, sent him a new membership card and said if he resigned he would forfeit his job. National Right to Work Legal Defense Foundation attorneys represented Buzenius against UPIU before the National Labor Relations Board. The Board acknowledged Buzenius' rights under the Court decisions and ordered the union to cease and desist collecting full dues from him and imposing any other membership requirements on him. It also required the union to post a notice telling all Weyerhaeuser maintenance and production employees that they have the same rights.
However, the Board allowed the wording of the union security clause that requires "membership in good standing" to stand. The Board said that the Supreme Court has never addressed the issue of permissible wording, so any wording agreed to by the employer and the union, and that is consistent with Section 8(a)3, is permissible. Buzenius took the wording issue to the Sixth Circuit Court of Appeals which, on September 8, ruled that the Weyerhaeuser union security clause "leads employees to believe that they must become full-fledged union members as a condition of employment," and, since this is "directly at odds with Supreme Court precedent," it must be disallowed.
The Sixth Circuit includes only Kentucky, Michigan, Ohio, and Tennessee. (The issue is moot in Tennessee because it is a right-to-work state.) Until the Supreme Court decides the wording issue, or until Congress codifies the three Supreme Court decisions in amendments to the NLRA, misleading union security clauses will still be allowed in all other non-right-to-work states. But the basic issues are already decided. No American worker can legally be forced to become or remain a union member in good standing in any state.
The trouble is that Department of Labor refuses to enforce the Supreme Court decisions. It allows the AFL-CIO to keep workers in the dark concerning those decisions. This means that individual workers must file individual cases with the NLRB and the courts to secure those rights.
The National Right to Work Legal Defense Foundation offers free legal representation to workers whose unions refuse to let them resign and become partial dues, financial-core represented workers. It can be reached on the Internet at www.nrtw.org. More basically, workers can help defend themselves against predatory unions by supporting HR 59, an amendment to the NLRA, currently under consideration in Congress, which would extend right-to-work protections to workers in every state. If that were to become law there could be no compulsory union dues for any purpose in any state.