Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations. He is also faculty director of the Center for Labor and a Just Economy. Professor Sachs teaches courses in labor law, employment law, and law and social change, and his writing focuses on union organizing and unions in American politics. Prior to joining the Harvard faculty in 2008, Professor Sachs was the Joseph Goldstein Fellow at Yale Law School. From 2002-2006, he served as Assistant General Counsel of the Service Employees International Union (SEIU) in Washington, D.C. Professor Sachs graduated from Yale Law School in 1998, and served as a judicial law clerk to the Honorable Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit. His writing has appeared in the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the New York Times and elsewhere. Professor Sachs received the Yale Law School teaching award in 2007 and in 2013 received the Sacks-Freund Award for Teaching Excellence at Harvard Law School. He can be reached at [email protected].
As Brian Mahoney at PoliticoPro reports, the Board today invited briefing on the question of whether unions should be permitted to charge non-members a fee for processing grievances. Under Machinists, Local No. 697, 223 NLRB 832 (1976), such a fee is impermissible, but today’s call for briefs asks whether the Board should overrule the Machinists decision. It should.
The problem with the Board’s rule is that it allows workers, in right-to-work states, to demand individual representation from the union (for example in grievance proceedings) while refusing to pay anything for that representation. There is no seeming rationale for this inequity, and nothing in the federal labor law nor in state right-to-work laws requires it. If unions are prohibited from collecting fair share fees, they should at a minimum be permitted to charge workers for the costs of individual grievance representation.
Abandoning the rule of Machinists Local 697 is a move that Catherine Fisk and I argue for in our paper Restoring Equity in Right to Work. As we write there:
[W]e propose that the National Labor Relations Board (NLRB or Board) abandon its rule forbidding unions from charging nonmembers a fee for representation services that the union provides directly and individually to the nonmember. Under the Board’s current rule—which is dictated neither by statute nor judicial interpretation—a union violates section 8(b)(1)(A) of the federal law if it insists that nonmembers pay for representation in disciplinary matters, even in right-to-work states where the nonmember has a right not to pay for the union’s representation generally.15 We believe that in right-to-work states, it ought to be within a union’s discretion to charge nonpaying nonmembers if those nonmembers wish to have the union represent them in disciplinary matters. Unlike the NLRB, we do not believe that charging an employee the fair price of a union service coerces that person, within the meaning of section 8(b)(1)(A), to become a union member or restrains his or her ability to refuse to support the union.
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April 25
FTC bans noncompete agreements; DOL increases overtime pay eligibility; and Labor Caucus urges JetBlue remain neutral to unionization efforts.
April 24
Workers in Montreal organize the first Amazon warehouse union in Canada and Fordham Graduate Student Workers reach a tentative agreement with the university.
April 23
Supreme Court hears cases about 10(j) injunctions and forced arbitration; workers increasingly strike before earning first union contract
April 22
DOL and EEOC beat the buzzer; Striking journalists get big NLRB news
April 21
Historic unionization at Volkswagen's Chattanooga plant; DOL cracks down on child labor; NY passes tax credit for journalists' salaries.
April 19
Alabama and Louisiana advance anti-worker legislation; Mercedes workers in Alabama set election date; VW Chattanooga election concludes today.