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Question: Can I be required to be a union member or pay dues to a union?

Answer: You may not be required to be a union member. But, if you do not work in a Right to Work state, you may be required to pay union fees.

Employment relations for almost all private sector employees (other than those in the airline and railroad industries) are covered by the National Labor Relations Act (NLRA).

Under the NLRA, you cannot be required to be a member of a union or pay it any monies as a condition of employment unless the collective bargaining agreement between your employer and your union contains a provision requiring all employees to either join the union or pay union fees.

Even if there is such a provision in the agreement, the most that can be required of you is to pay the union fees (generally called an “agency fee.”) Most employees are not told by their employer and union that full union membership cannot lawfully be required. In Pattern Makers v. NLRB, 473 U.S. 95 (1985), the United States Supreme Court held that union members have the right to resign their union membership at any time.

If you are not a member, you are still fully covered by the collective bargaining agreement that was negotiated between your employer and the union, and the union is obligated to represent you. Any benefits that are provided to you by your employer pursuant to the collective bargaining agreement (e.g., wages, seniority, vacations, pensions, health insurance)are not affected by your nonmembership. (If the union offers some “members-only” benefits, you might be excluded from receiving those.) If you are not a member, you may not be able to participate in union elections or meetings, vote in collective bargaining ratification elections, or participate in other “internal” union activities. However, you cannot be disciplined by the union for anything you do while not a member.

The Supreme Court, in Communication Workers v. Beck, 487 U.S. 735 (1988), a lawsuit that was supported by the Foundation, ruled that objecting nonmembers cannot be required to pay union dues. The most that nonmembers can be required to pay is an agency fee that equals their share of what the union can prove is its costs of collective bargaining, contract administration, and grievance adjustment with their employer.

Except in extraordinary cases, the union’s costs of collective bargaining, contract administration, and grievance adjustment do not equal the dues amount.

Beck makes clear that nonmembers required to pay union fees as a condition of employment have a right under the NLRA to object and obtain a reduction of their compulsory payments so that they do not include union expenses for purposes other than collective bargaining, contract administration, and grievance adjustment.

If you would like to get an idea of the kind of union expenses which are not chargeable to nonmembers, click here.

The United States Court of Appeals of the District of Columbia Circuit, in Abrams v. Communications Workers, 59 F.3d 1373 (D.C. Cir. 1995), another lawsuit that was supported by the Foundation, took the position, correctly we think, that private sector unions under the NLRA must comply with the procedural requirements imposed on public employee unions by the United States Supreme Court in Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986). However, the National Labor Relations Board (NLRB), the agency which has the primary responsibility for enforcing the NLRA, in California Saw and Knife Works, 320 N.L.R.B. 224 (1995), enforced, 133 F.3d 1012 (7th Cir. 1998), ruled that only some of the requirements of Hudson apply under the NLRA. At this time, the NLRB only requires unions to provide the following procedures to safeguard your right to pay no more than a limited agency fee:

  • the union must inform you that you have the right to be a nonmember;
  • the union must inform you that nonmembers have the right to object to paying for union activities not germane to the union’s duties as bargaining agent and to obtain a reduction in fees for those activities;
  • the union must give you sufficient information to enable you to intelligently decide to object;
  • the union must tell you about its procedures for filing objections; and,
  • if you object, the union must tell you the percentage of the reduction, the basis for the calculation, and that you have the right to challenge these figures.

If the union does not provide you with these procedures, or if you want to challenge the amount the union claims from you as an agency fee, you can either bring a lawsuit in federal court for breach of the union’s duty of fair representation or file an unfair labor practice charge with the nearest NLRB regional office. However, any such lawsuit or unfair labor practice charge must be filed within six (6) months of the conduct of which you complain. If you file a duty of fair representation lawsuit, you will need an attorney. If you file an unfair labor practice charge with the NLRB, and the General Counsel issues a complaint on your charge, the NLRB will provide a lawyer to litigate the charge.

However, the NLRB-provided lawyer represents what NLRB and its General Counsel consider to be important “public interests.” You can have your own lawyer representing your interests, but the NLRB General Counsel decides what issues to litigate, and you cannot force the General Counsel to litigate an issue he wants to leave out.

If you work primarily in a Right to Work state, except on certain federal property, you not only have the right to refrain from becoming a union member, you cannot be required to pay dues or an agency fee to the union unless you choose to join the union. Employees who work on federal property may or may not be protected by their state’s Right to Work law, depending on specific circumstances.

If you would like to see a list of the 26 Right to Work states, click here.

In addition to the rights discussed above (concerning ways to limit your association with the union), you should also remember that private sector employees covered by the NLRA have the right to seek a “deauthorization” election, which completely nullifies the compulsory unionism clause in the collective bargaining contract and eliminates ALL dues requirements. For more information on this option, click here.

If you would like to learn more about your rights as a private sector employee, click on the appropriate question below: