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Union Security Clause Facially Invalid

September 22, 1997

Many collective bargaining agreements contain a union security clause, providing that each employee covered by the agreement must become a member of the union within thirty-one days of the employee's date of hire. By all appearances, the language of a union security clause requires an employee to be a member of the union. However, under a series of U.S. Supreme Court decisions, union security clauses do not necessarily mean what they say.

Specifically, the Supreme Court has ruled that an employee may satisfy the requirements of a union security clause without becoming a full-fledged member of the union. An employee who wishes to resign from the union or who chooses not to join a union need only pay to the union an amount equal to the dues and fees which are to be used for the purpose of collective bargaining, contract administration, or grievance adjustment. The union may not require actual membership nor may it compel payments by employees of money to be expended for purposes other than these "core" representational functions (such as political contributions, lobbying activity, and the like). An employee who chooses not to join the union is deemed a "financial core" member and, unlike actual union members, is not subject to union fines or discipline for violation of the union's internal rules.

Because generic union security clauses can potentially mislead employees into believing that they must become members and pay full membership dues, the Supreme Court has held that a union must notify employees that they have the right to refuse union membership and to pay only financial core dues. If the union fails to give the required notice, the union has violated the National Labor Relations Act and an employee is entitled, upon request, to a refund of any dues and fees paid by the employee to the union in excess of financial core dues for a six-month period.

To date, the National Labor Relations Board has taken the position that generic union security clauses, which purport to require "union membership," although ambiguous, are not facially unlawful, and that the inclusion of such clause in a collective bargaining agreement is not a per se violation of the National Labor Relations Act.

However, a federal appeals court recently reversed the NLRB's ruling and held that the inclusion of a generic union security clause in a collective bargaining agreement was facially unlawful. (Buzenius v. NLRB, 156 LRRM (BNA) 2207 (6th Cir. Sept. 8, 1997)). To be valid, the court ruled, a union security clause which states that employees must become and remain union "members in good standing" must contain a concurrent definition of that term which is consistent with the legal standards developed by the Supreme Court. The court reasoned that to allow plain language requiring membership without explanation is deceptive to employees and would violate the principle of voluntary unionism.

The law in this area is in flux, and it is now more likely than ever that an employer who discharges an employee in reliance on a union security clause may be found in violation of the National Labor Relations Act (and liable to the employee for backpay). Employers should therefore be wary of complying with a union's request that an employee be discharged based on his or her failure to pay dues or otherwise comply with a union security clause.