This is the tenth article in the Judicial Amendment Project series on the history of the National Labor Relations Act. The stories in the series to date include:
Why the National Labor Relations Act Is a Weak Law Today – and How We Can Restore its Power
Judicial Amendments and the Attack on Worker Rights
Solidarity NOT Forever: How the Supreme Court Kicked Retirees Into the Gutter
Strike and You’re Out: The Supreme Court’s Destruction of the Right to Strike
A Strike Is a Strike and Only a Strike
At an Impasse: Collective Bargaining Under the Judicial Amendments
The Supreme Court Empowers Employers to Lock Out Workers
The Judicial Amendments’ 1-2-3-4 Punch to Collective Bargaining
Extra! Extra! Rich Corp Execs Shut Down the NLRB! Then and Now
If you want to start a lively discussion, bring up the subject of either taxes or union dues. In fact, the two are very similar.
Many of us complain about paying taxes, but deep down we know that if we don’t pay taxes, many of the things we depend on every day will fall apart. Taxes pay for things that improve our quality of life and protect our democracy. Taxes are about being good citizens of our country, not about how we as individuals benefit directly from payment. Like our parents and grandparents before us, we pay taxes to strengthen America. Our taxes pay for roads, weather information and assistance when weather turns bad, protection of our food supply, schools and much more.
Union dues are similar. The dues we pay take money from our paychecks, but they return benefits both immediately and over the long term. By law, employers cannot deduct dues from employees’ paychecks unless employees agree. In fact, however, there are good reasons that Congress authorized agreements allowing unions to charge dues to all who benefit from what they buy and why employees and employers agree to charge those dues.
Every organization needs funds to operate, and unions are no exception. Before talking about the law relating to union dues, it is important to know what union dues buy. Union-negotiated benefits are not limited to the union’s members. The benefits are available to everyone in the workplace unit a union represents. In addition, by law, a union must fairly represent everyone in the bargaining unit, even those who choose not to become full members of the union. The most common actions that involve union representation are negotiating, enforcing and administering collective bargaining agreements.
Collective bargaining agreements (CBAs) are contracts between unions and employers for the benefit of the employees the union represents. Unlike non-union workplaces, employees who are represented by a union typically have the right to vote on the terms of their employment set forth in collective bargaining agreements. Collective bargaining agreements are not ordinary contracts. They provide equal protection and due process rights to workers. In fact, CBAs are more like legislation than ordinary contracts. CBAs govern the workplace and are often referred to as “the law of the shop.”
CBAs set basic rights for all covered workers, such as wages, sick pay, vacations, benefits, freedom from discrimination and safe working conditions. CBA terms include employee rights to file grievances over working conditions and unfair treatment, including discipline and discharge without good cause. If grievances are not settled, employees can appeal to higher levels and even take their grievances to arbitration before a neutral arbitrator paid for by the union. The grievance process and arbitration decisions become part of the “law of the shop.”
This sort of representation costs money. Benefits can include complex legal rights, such as pension and benefit plans. Representation when negotiating a contract or bringing a grievance can be expensive, often requiring lawyers, accountants or actuaries to assist the union. Union dues are the only source of funds available to unions to pay these costs of representation.
Because all employees covered by the contract benefit from union representation, Section 8(a)(3) of the National Labor Relations Act (NLRA) allows unions and employers to include “union security” clauses in collective bargaining agreements, except where banned by state law. Union security agreements require all covered employees to pay union dues, even if they choose not to join the union as full members. This prevents “free riders”: those who would accept the benefits negotiated by the union while leaving others to pay the costs. A system that allows free riders will eventually disintegrate as there will be no incentive for anyone to pay dues if the benefits seem to be available for free.
The analogy to taxes is obvious. We are required to pay taxes because we all benefit from the public goods our taxes buy – bridges, fire and police protection, and courts, for example. While we may object to some of the ways our taxes are used, if anyone could opt out of paying for these public goods, eventually, none of us would have these benefits.
If we fail to pay our taxes, we face criminal charges. Workers who like the benefits of working in a union-represented workplace but do not want to pay dues may be discharged. While being fired seems harsh, as discussed earlier, freeloaders have negative effects on workplaces.
As citizens, we have a remedy for taxes we don’t like: the ballot box, where we elect our representatives. Unions are also democracies, and union members have a right to vote out representation they don’t like. Unions are required by law to hold regular elections of officers with guarantees of a secret ballot and equal treatment for candidates. Union members also have rights of free speech and due process within the union.
Congress carefully structured a system to balance the rights of workers, employers and unions. Unions must represent all workers in the unit, even those who choose not to join the union. But the union and employer can negotiate a union security agreement that requires all represented workers to pay the cost of representation. At the same time, workers are guaranteed democratic rights both to change their representatives and to influence the actions of those representatives. This workplace governance system resembles our political system in many ways.
Despite the careful balance struck by Congress, union dues have been under attack for years by groups following in the footsteps of the American Liberty League. As a result, judicial amendments and state legislation have restricted unions’ ability to collect dues, reducing the resources of unions and limiting their ability to balance the power of corporations.
The more union dues shrink, the less unions are able to protect and advocate for the workers they represent – a responsibility that grows increasingly crucial as corporate influence looms ever larger. Though no one loves paying taxes – or dues – both are vital to the survival of our democracy.
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