NLRB Chief Calls for More Policing of Financial-Core Member Fee Objections – Advocates For More Employee-Friendly Standard in Chargeability Challenges
By Attorney Bryan T. Symes – Weld Riley, S.C.
Earlier this month, the National Labor Relations Board’s (“Board”) general counsel, Peter B. Robb, issued Memorandum GC 19-06 [available here:https://www.nlrb.gov/news-publications/nlrb-memoranda/general-counsel-memos], through which he advocates for a more employee-friendly standard in connection with claims that unions have allegedly overcharged financial-core members [also commonly referred to as “dues-paying nonmembers”] in connection with activities beyond the scope of collective bargaining, contract administration and/or grievance adjustment, as explained below.
By way of background, the Supreme Court of the United States long ago established that in non-right-to-work states [recall that Wisconsin is a right-to-work state; however, our clients in Minnesota, for example, do not benefit from right-to-work laws]—where unions and employers may presently agree to condition employment upon union membership [called “union security” provisions]—the concept of “membership” is “whittled down to its financial core.” This means that employees in the union-shop environment [again, in non-right-to-work states] may object to paying full union membership dues—and instead may onlybe compelled to pay that share of union membership dues corresponding to activities related to collective bargaining, contract administration and/or grievance adjustment. To that end, the Trump Board recently determined that a union’s lobbying activities fall squarely outside of union efforts germane to collective bargaining, contract administration and/or grievance adjustment—even if the lobbying efforts touch and concern a subject, or subjects, typically negotiated as part of the bargaining relationship—e.g., lobbying for legislation to improve employee safety. See e.g., United Nurses & Allied Professionals (Kent Hospital), 367 NLRB No. 94 (Mar. 1, 2019).
Employees routinely complain that unions charge for activities beyond the scope of collective bargaining, contract administration and/or grievance adjustment. According to General Counsel Robb, in this setting, there are two avenues for disputing the union’s expense allocations: (1) filing a “duty-of-fair-representation” charge directly with the Board; or (2) pursuing a challenge through the union’s established challenge mechanism—neither of which is mutually exclusive. Through GC 19-06, General Counsel Robb emphasizes, “[u]nder either procedure, the union has the burden of justifying the propriety of its expense allocations.” However, as General Counsel Robb points out, “…prior General Counsels have required that the employee explain why a particular expenditure classified as chargeable by the union is not for a representational purpose and present evidence, or point to evidence, in support of that assertion.” In Robb’s view, placing this burden on the complaining employee is repugnant with existing law, and prevents use of the Board as a viable forum for chargeability challenges. For this reason, General Counsel Robb instructs, “…greater scrutiny of union expenditures at the investigation stage, without the objecting employee having to first identify and present evidence regarding questionable expenditures, is warranted….”
In advocating for a new, more employee-friendly standard in connection with chargeability challenges, General Counsel Robb instructs that “[i]n investigating charges contesting the chargeability of expenses, the Region should contact the union to obtain a detailed explanation of the union’s chargeability decisions for each major category of expenses and, in particular, the method it used to determine the portion of expenses chargeable in mixed expenditure categories.” Finally, Robb opines that “…charges challenging a union’s chargeability calculations should not be dismissed on non-effectuation grounds merely because the nonchargeable expenditures, or the amount of the arguable overcharge, might be de minimis” [e.g., less than one percent of the local union’s expenditures]. In other words, there is no alleged overcharge too small for consideration.
Although Wisconsin currently remains a right-to-work state, in which “union security” provisions are illegal, there are signs that the winds of political change may be blowing. For this reason, the protections for which General Counsel Robb advocates are welcomed by the respective employer and employee-rights communities. Notwithstanding Wisconsin’s right-to-work protections, GC 19-06 is the latest union-unfriendly missive to leave Robb’s desk, and is consistent with the current trend of Board policy and Board decisions favoring employers.