Union members have a right to claim what is known as “objector” status. If they do, a union is obligated to recalculate the dues that those seeking objector status have to pay. The union must reduce the dues by a proportional amount that is equal to money the union spends on activities not related to collective bargaining, contract administration, and grievance adjustment.
This rule has generated substantial litigation over the years. Some of that litigation focused on what expenses must be excluded in the calculation. Other litigation focused on what a union member has to do to invoke objector status or on the notice a union member is entitled to receive from the union about the right to object.
Recently, the NLRB waded into this area again. It addressed a requirement by the Communication Workers of America (CWA) that objectors renew their objections on an annual basis. The CWA asserted that this requirement was necessary because it shared information on objectors with local unions so that local unions could identify how their performance was perceived by employees they represent.
The NLRB held (pdf) that the CWA’s annual renewal was arbitrary, and thus unlawful. The NLRB, relying upon a 2010 decision, reasoned that any annual renewal requirement is unlawful unless the union can demonstrate that the burden imposed is de minimis or there is a legitimate justification for the requirement.
The CWA conceded that the annual renewal requirement was more than a de minimis burden, instead attempting to prove that it was justified. The NLRB rejected this argument. Noting that unions did have a “legitimate interest” in addressing the dissent that objector status signifies, the CWA failed to prove that it or its locals ever used the information it collected from the annual renewal requirement as a basis for taking any such remedial action. The “mere collection of data” was not a sufficient justification for the annual renewal requirement.
While the NLRB’s decision will be welcomed by those employees who object to seeing their mandatory union dues being spent for other than representation activities, the relief may well be only temporary. The NLRB’s decision signals a willingness to entertain a union justification for an annual renewal requirement, if a union can identify one and prove that it is actually implementing it.