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DFR: Should a Union Rep Those Who Don't Pay Dues?

A union is challenging the duty to fair representation in court

Brian Young's picture
Sep 30, 2020

A federal appeals court in Chicago has decided to hear an important union case that challenges the requirement to represent employees in a bargaining unit that do not pay dues, also known as the duty of fair representation.

Since the Janus decision, public-sector unions, as well as private-sector unions in Right to Work states, have been forced to represent employees that are not a part of the union. Basically, the duty of fair representation requires unions to represent these people for free.  The lawsuit was filed by the International Union of Operating Engineers (IUOE) Local 150 which represents public and private sector employees in Illinois. The Local argues that the obligation to represent those free-riding nonmembers violates their free speech and the associational rights of public-sector unions and their members. The union is basically arguing that they should not have to defend non-members in grievance hearings for free.

Local 150 emphasized in their brief to the court that they were not looking to challenge the right to exclusive representation, meaning that they are the sole bargaining unit at a workplace, but rather that they are looking to create a less restrictive alternative to mandatory agency fees that were taken away by the Supreme Court. For example, allowing the union to set up a system where a nonmember pays a per diem fee to be represented in a grievance hearing by the local.

 This case is the latest in a series of court challenges by Local 150 to try and weaponize the Janus decision in favor of organized labor. They previously tried to use the case to challenge a public-pension fund’s investment decisions and an Illinois town’s funding of a municipal lobbying organization.

The move by Local 150 to challenge the duty of fair representation has not come without some criticism. Four of the largest public-sector unions, The American Federation of State, County, and Municipal Employees (AFSCME), American Federation of Teachers (AFT), National Education Association (NEA), and Service Employees International Union (SEIU) have filed a brief arguing against Local 150’s position. In an odd twist, the National Right to Work Legal Defense Fund has also filed a brief opposing Local 150’s case, making this perhaps the first time the two groups have been on the same side of a lawsuit. The unions are likely concerned that if the court finds in Local 150’s favor they could go further and take away the right to exclusively represent the workforce. On the other side, the National Right to Work Legal Defense Fund wants to keep the duty of fair representation because it helps to defund the union by forcing them to pay for services for nonmembers. It also is used as a talking point for these anti-union groups when they tell workers to opt-out of their union because they will get the services for free.

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