Stephen R. McCutcheon, Jr., Attorney at Law
The National Labor Relations Act was adopted to guarantee the right of employees to organize, engage in collective bargaining, or take other collective action regarding the terms and conditions of employment. The Act expressly recognizes not only that there may be inequality of bargaining power between employees and employers, but also that it was needed to address abusive practices by labor organizations. At the most basic level, the NLRA is there to protect the right of employees to join – or not to join – a union.
One would expect this basic premise of the NLRA to be a guiding principle for decisionmaking, ensuring that the free exercise of rights by employees is guaranteed. That is not always the reality. In United Workers of America, Local 621 360 NLRB No. 89 (Apr. 29, 2014), the employees rejected representation by the union, voting unanimously on September 26, 2012, to withdraw authority of the union to require membership as a condition of employment. On October 1, 2012, the employees sent letters to the union resigning from membership and revoking authorization for the union to deduct dues from their paychecks. However, the NLRB did not certify the election results until October 11, 2012. The employer continued to deduct dues on behalf of the union until March 2013.
The Board found that the employees’ revocations of the authorization for the union to deduct dues were “premature” and “invalid” because they were executed prior to the certification of the election. The Board refused to find that the revocations of the dues deductions “ripened” or became effective upon certification of the election. Notwithstanding the unanimous vote of the workers, and the express written revocation of authorization, the Board held that the union was entitled to continue collecting dues unless the workers gave notice of revocation after the certification date of the election. It seems that the goal of protecting the rights of the workers was cast aside in this instance.