Labor Relations Case 33 The Grievance-Processing Fee for Nonmembers in a Right-to-Work State 159 Case 33 The Grievance-Processing Fee for Nonmembers in a Right-to-Work State Company Davis Company, Memphis, Tennessee Union Local No. 282, international Union of Electronic, Electrical, Salaried, Machine, and Furniture Workers BACKGROUND The union represented the production and maintenance employees at the company's plant located in Memphis, Tennessee. Tennessee is a so-called right-to-work state. Un- der Tennessee state law, union shop contracts cannot be negotiated; this type of state law is authorized by Section 14(b) of the LMRA. The parties negotiated a collective bargaining agreement, effective September 12, 1986, through September 11, 1989, which contained a grievance and arbitration pro- cedure. However, this collective bargaining agreement did not contain either a union security or agency shop clause. On or about September 10, 1987, the union sent or hand-delivered a memorandum to all the bargaining unit employees who were not members of the union. This memoran- dum included the following statement: ATTENTION ALL NONMEMBERS Effective immediately, all nonmembers will be charged a fee for handling grievances, an equal amount to the cost of representation, or the dues left to be paid under the contract, whichever is less. Subsequently, on November 20, 1987, the union posted the following notice on the em- ployee bulletin board: ATTENTION ALL NONMEMBERS Effective immediately, all nonmembers will be charged a fee for handling grievances, an equal amount to the cost of representation, or the dues left to be paid under the contract, whichever is less. Section 14(b), the so-called right-to-work provision, reads as follows: "Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial Law."Cases in Collective Bargaining & industrial Relations 10/e \\ 160 Part One Legal Aspects of Collective Bargaining: National Labor Relations Board Cases . The Union will not refuse to process your grievances because of this policy. Should you wish to file a grievance, please follow the normal contract procedures. unfs l.mry thereaera the company on behalf of Alexandria Yowell,2 an employee, filed daksee 1ab_01' practice charges against the union. These charges alleged that the union's ac- tion was in violation of Section 8(b) (1) (A) and Section 7 of the LMRA as amended. POSITION OF THE COMPANY The. company contended that in the absence of a valid union security clause, 2 labor or- ganization breaches its duty of fair representation by charging or threatening to charge nonmembers the costs of processing grievances. The LMRA requires that an exclusive bargaining representative must act fairly and impartially on behalf of all bargaining unit employees, particularly in right-to-work states where union security clauses are prohib- ited. Both the September 10 and November 20, 1987, notices represented discriminatory treatment of nonmembers, because they indicated that the union would attempt to col- lect future payments for grievance processing. The company argued that the union was attempting to coerce nonmember employees to join the union, which was violative of their protected rights under Section 7 of the Act to refrain from joining the union. The company urged that the union's proposed grievance- processing fee be held in violation of the LMRA, and that the union be ordered to cease and desist in any efforts to impose such a discriminatory fee. POSITION OF THE UNION The union contended that it had not breached its duty of fair representation, because the proposed grievanceprocessing fee was reasonable and for services rendered. Failure to charge nonmembers any fee would treat nonmembers and members unequally. The union argued that the November 20, 1987, notice stated that implementation of the grievance- procssing charge would not interfere with employees' rights under the collective bargain- ing agreement. The union further claimed that it had acted in accord with the notice by not refusing to process nonmembers' grievances or threatening to institute suits to compel pay- ment for such services. HOWeVer, the union asserted that the LMRA did not mandate that unions must provide grieva.nce-processing services free of charge. A union should not be required to provide totally free representation and services to those employees who decided not to be members even though they received all rights and bene fits of union membership. This principle is established in Section 19 of LMRA, which provides that even where a union shop i present, a union may charge a grievance-processing fee for an employee who is not in the union because of valid religious conscientious reasons. Common sense and fundamental fairness should support the concept that a labor orga- pization be able t0 collect reasonable EXpenses it incurs on behalf of nonmembers (called freg-riders) the union by law must represent. In a right-to-work state, nonmember employ- ges in @ bargaining unit benefit directly from union efforts on their behalf. Letting unions 2Name is disguised. Labor Relations Case 33 The Grievance-Processing Fee for Nonmembers in a Right-to-Work State 161 recoup the costs of grievance processing does not constitute coerced "membership" within the meaning of Section 14(b) of LMRA. For all these reasons, the union claimed that it was well within its rights in its effort to charge a grievance-processing fee for nonmembers. The union requested that the un- fair labor practice charges filed by the company be dismissed. QUESTIONS YMASIWOD EHT 10 Mom209 1. Evaluate the union's arguments concerning the need for grievance-processing fees to cover the union's expenses incurred representing nonmembers in the bargaining unit. Why is this problem at the core of any union's efforts to attain a union shop in those states where union shops are not prohibited by state law? 2. Why would the company be interested in pursuing these unfair labor practice charges when the issue is largely an internal union problem? Discuss. 3. Why was this case an important one in the continuing controversy over union repre- sentation and rights in right-to-work states? 4. Discuss the pros and cons of Section 14(b) of LMRA from the standpoint both of this case and of labor relations in general. Why will the application of Section 14(b) likely continue to be a controversial issue? MOMU BUT NO MOIT209