Union Security Clauses Unlawful??

UNION CORNER: Recent Court Decisions Make Many
Union Security Clauses Unlawful

A very familiar clause in many collective bargaining agreements, the union security clause, is now unenforceable according to at least three federal circuit courts covering fourteen states. Union security clauses, which mandate union membership as a condition of employment, are often worded as follows:

All Employees…shall, as a condition of continued employment, become and remain members in the Union, and all such Employees subsequently hired shall become members of the Union within thirty-one (31) calendar days, within the requirements of the National Labor Relations Act.

Employers with operations in Minnesota, Iowa, Missouri, Nebraska, South, North Dakota and Arkansas need to be particularly aware of new rules that now govern the drafting of collective bargaining agreements. The United States Court of Appeals for the Eighth Circuit, which covers these states, has decreed that collective bargaining agreements (CBAs) must now be drafted according to the following rules:

• All employees have the right to freely join or decline to join the union.
• Every union member has the right to freely retain or discontinue his or her membership.
• Employees who decline to join the union may be required, at a minimum, to pay a reduced service fee equivalent to his or her proportionate share of union expenditures that are necessary to support solely representational activities in dealing with the employer on labor-management issues.
• No employee shall be discriminated against on account of his or her membership or non-membership in the union.

A union security clause that does not contain the above language or reflect its undiluted equivalent will not be enforced.

Besides the Eighth Circuit, the Seventh Circuit (which covers Wisconsin, Illinois and Indiana) and the Sixth Circuit (which covers Kentucky, Michigan, Ohio, and Tennessee) have issued similar opinions.

The District of Columbia and the Ninth Circuit (which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and the Northern Mariana Islands) have held that such language is not unlawful and that unions need not rephrase the CBAs. However, the United States Supreme Court is currently reviewing that reasoning, so it may not remain the rule for very long.

No doubt there are thousands of existing CBAs that contain union security clauses that are now unlawful in light of these recent federal court decisions. It is therefore wise for employers to revamp their contracts during negotiations. Otherwise, employers may risk liability in litigation with their employees.

Posted 2/15/1999