In order for a union to represent a group of workers, a petition to start the election process must first be filed with the National Labor Relations Board (“NLRB”) and it must receive support from 30% of the employees. Once the NLRB determines that the 30% threshold is met, the NLRB will conduct an election to determine if a majority of employees want union representation. If the union is certified by the NLRB, through a majority vote, the union becomes the exclusive bargaining representative of the employees. That is, the union becomes the sole representative of the employees and may act on their behalves. Thus, if an employer wants to make any changes in employment, the employer must work directly with the union, rather than directly with the employee. Since unions have been granted the power of exclusive representation, they also have a duty to fairly represent all employees in good faith and without discrimination. This duty of fair representation requires a union to act as an agent for each employee, regardless of whether the employee decides to join the union (“full members”) or not (“statutory members”). Thus, as the exclusive bargaining representative, unions bear the burden of fair representation for all employees, regardless of whether they are classified as full or statutory members.
The main issue of this Note is whether unions violate an individual’s free speech when they compel the payment of dues from their members. Unions depend on the collection of member fees to carry out the essential functions required of them, which include contract negotiations and grievance processing. However, if unions can no longer collect member fees from employees, unions will no longer be able to provide the services they currently do. Thus, jeopardizing union stability. Secondly, as the exclusive representative, a union is required to bargain on behalf of all employees, regardless of their member status. If unions don’t require all employees to pay union dues, a free-rider problem arises. If an employee does not have to pay any fee, but is still able to receive the benefits of union representation, a majority of employees will opt-out of paying dues and instead rely on the payment of others. Ultimately, the question is whether unions can negotiate for union-security agreements.
The Janus Decision and the Future of Private- Sector Unionism,
16 Hastings Bus. L.J. 119
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