NLRB Invites Briefs on Nonmember Fees for Grievance Processing | Practical Law

NLRB Invites Briefs on Nonmember Fees for Grievance Processing | Practical Law

The National Labor Relations Board (NLRB) invites amicus briefs in United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Union Int'l, Local 1192 & Jimmie Ray Williams & Buckeye Florida Corp. (United Steel) on the question of whether the Board should adopt a rule allowing unions to collect fees from nonmembers for grievance processing.

NLRB Invites Briefs on Nonmember Fees for Grievance Processing

Practical Law Legal Update 8-609-4885 (Approx. 4 pages)

NLRB Invites Briefs on Nonmember Fees for Grievance Processing

by Practical Law Labor & Employment
Published on 21 Apr 2015 • USA (National/Federal)
The National Labor Relations Board (NLRB) invites amicus briefs in United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Union Int'l, Local 1192 & Jimmie Ray Williams & Buckeye Florida Corp. (United Steel) on the question of whether the Board should adopt a rule allowing unions to collect fees from nonmembers for grievance processing.
On April 16, 2015, the panel (Board) heading the NLRB's judicial functions posted a notice and invitation to file briefs, inviting the parties and interested amici to file briefs in United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Union Int'l, Local 1192 & Jimmie Ray Williams & Buckeye Florida Corp. to answer the question of whether the Board should adopt a rule allowing unions to collect fees from nonmembers for grievance processing (12-CB-109654, (Apr. 15, 2015)).
On March 24, 2014, an NLRB Administrative Law Judge (ALJ) issued a decision in United Steel, finding that the employer's maintenance and implementation of a "Fair Share Policy" requiring nonmember bargaining unit employees to pay a grievance-processing fee violated Section 8(b)(1)(A) of the NLRA.
The employer asked the Board to adopt a rule permitting a union to charge nonmembers a fee for the processing of grievances, as long as the fee is not more than the amount a union could charge to nonmembers under Communication Workers of America v. Beck or California Saw (487 U.S. 735 (1988); 320 N.L.R.B. 224 (1995)).
The Board invites the parties and interested amici to file briefs and submit empirical and other evidence to assist it in addressing the following questions:
  • Should the Board reconsider its rule that absent a valid union-security clause, a union cannot charge a fee to nonmembers for grievance processing?
  • If grievance processing fees for nonmembers were held lawful, what factors should the Board use to determine whether the fee amount violates Section 8(b)(1)(A)?
  • What steps could a union lawfully take to ensure the payments are made.
Briefs, which should be no longer than 25 pages, may be filed with the Board in Washington DC no later than June 1, 2015. Responsive briefs, not exceeding 15 pages, may be filed no later than June 15, 2015.
Parties and amici must file briefs electronically using the N.L.R.B. E-Filing System and must serve all case participants.

Practical Implications

A modified Board rule permitting “fair share” charges, absent a valid union security clause may be difficult to reconcile within the 25 states that have right-to-work laws. Right-to-work laws generally limit an employer's and union's ability to negotiate for union security clauses in collective bargaining agreements (CBA) that require union membership or union dues or fees payments as a condition of maintaining employment. For more information, see Practice Note, State Right-to-work Laws Chart: Overview.