Recent NLRB Decision Helps Employees, Hurts Unions

On March 1, 2019, the National Labor Relations Board (NLRB) issued a decision in United Nurses and Allied Professionals (Kent Hosp.), 367 NLRB No. 94 (2019) addressing the rights of individuals in collective-bargaining units who are subject to union-security requirements and elect not to be union members. The Board held that unions cannot charge these individuals for lobbying activities because such activities are not needed for unions to perform their statutory representational duties (i.e., collective-bargaining, contract administration, and grievance adjustment). Additionally, the NLRB held that unions must provide these individuals with independent verification that the financial information it shares with them about union expenditures to justify their non-member charges has been properly audited. The decision came on the heels of a memorandum issued by the Board’s General Counsel, which addressed unions’ duties to notify employees in collective-bargaining units of their right to be non-members, pay reduced charges, and revoke dues authorization checkoffs on their specific anniversary and/or contract expiration dates.

The union in Kent Hosp. represented a group of registered nurses. Some of those nurses resigned their union membership and objected to the union charging them for lobbying activities. Such individuals are sometimes referred to as Beck objectors in light of a decision by the Supreme Court of the United States in Commc’ns Workers v. Beck, 487 U.S. 735 (1988), which decided that non-member employees can object to paying for union activities not germane to unions’ representation duties. Two issues arose in Kent Hosp.

The first issue was whether the union properly charged non-members for lobbying activities. The lobbying concerned state legislation ranging from a proposed law that sought to provide enhanced retirement benefits for publicly-employed nurses to one that sought to increase funding for the employer at issue in the case. The Board decided that the union violated its duty of fair representation by charging its non-members for these lobbying activities. In doing so, the NLRB explained that the lobbying was not necessary for the union to perform its representational duties required by statute, and, therefore, the union should not be charging non-members for such activities. The Board found support for its conclusion in cases decided by the Supreme Court and the United States Court of Appeals for the District of Columbia, including Beck.

The second issue was whether the union provided the nurses with sufficient information when it told them how much non-member charges were. In sharing the amount of non-member charges with the nurses, the union provided the nurses some financial data to support the amount of the non-member charges. The union told the nurses that the financial information had “been verified by a certified public accountant,” but did not actually provide the nurses with any documentation supporting this assertion. The NLRB decided that the union again violated its duty of fair representation by failing to provide independent verification that the financial information had been properly audited. In doing so, the Board explained that independent verification was needed “to adequately assure the reliability of the financial information . . . .” The NLRB largely relied upon a public-sector decision by the Supreme Court in Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986) announcing that “basic considerations of fairness” require employees to have sufficient information to assess the charges levied on them by unions.

There is a common misconception that employees’ interests and unions’ interests are the same. The decision in Kent Hosp. is just the latest example disproving this misconception.

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Employers with questions about the impact this decision may have on their employees should contact an attorney in the Gibbons Employment & Labor Law Department.

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