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NLRB General Counsel Just Made It Easier For Nonmembers to Challenge Agency Fees


At the end of April, National Labor Relations Board ("NLRB") General Counsel, Peter Robb, issued a memorandum in which he wrote that nonunion members that pay union dues will be able to more easily challenge the expenses required to be paid for the costs of collective bargaining and other nonpolitical activities.  (Section 8(a)(3) of the National Labor Relations Act allows employers and unions, in non right to work states, to enter into agreements that require union membership as a condition of employment.  These agreements allow unions to collect forced fees (a/k/a "agency fees") from all workers.  These agency fees are intended to prevent "free riders" from benefiting from the collective bargaining of the union without providing any financial support/compensation to the union itself.  However, certain union expenses have been found to not be chargeable to nonmembers, including the cost of lobbying, salaries, and benefits.)

The memorandum notes that going forward, workers that object to paying for particular union expenses do not have to explain why they should not have been charged nor require them to give the NLRB evidence or investigative leads to support their challenge; a change from prior NLRB General Counsels.  With prior NLRB General Counsels calling on workers to provide this information (as to their objection to particular union expenses), the burden was placed on workers to contest particular union expenses.  However, under this new guidance, the burden instead shifts to unions to provide evidence as to why a particular union expense charged to nonmembers is permitted by law.

This memorandum was predictably met with both applause and disdain.  Patrick Semmens, spokesman for the National Right to Work Legal Defense Foundation, stated the burden shifting in regard to these union fees put the burden of proof back on the union officials "...where it belongs when it comes to justifying the amount of forced fees."  On the other side of the coin, the change in policy could lead to unions having to expend countless resources to rebut meritless challenges filed by nonmembers.  Regardless of where you stand on the matter, this is a favorable turn of events for those opposed to agency fees.


For a copy of General Counsel Robb's memorandum:  http://src.bna.com/HTW

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