Court challenges of new state right-to-work (RTW) statutes have been uniformly unsuccessful — in Indiana, Michigan and so far in Wisconsin — but it now appears the National Labor Relations Board (NLRB) could attempt to step in by overturning settled law in an area that especially impacts employees in RTW states. Although it has not gotten much attention so far, the NLRB announced on April 15, 2015, that it was inviting briefs on the issue of whether a union may require a non-union member in the bargaining unit to pay a fee to process a grievance in a RTW state.

The National Labor Relations Act (NLRA) imposes the duty of fair representation on unions. In other words, if a union is the exclusive representative of the members of the bargaining unit, then the union must represent all bargaining unit members regardless of whether they are members of the union. The NLRA also allows states to pass RTW laws, which prohibit employers from requiring union membership or the payment of monies to unions as a condition of employment. 

Currently, under NLRB legal precedent, it is impermissible for a union to require a non-union member in the bargaining unit to pay a fee to process a grievance in a RTW state (i.e., a union must process grievances for anyone in the bargaining unit regardless of whether or not the grievant is a union member). If the NLRB were to change the law — and it signals this is a possibility by inviting briefs on the issue — the impact would be significant in RTW states. In short, if employees took advantage of RTW laws and did not pay union dues, those employees would not get union representation with respect to their grievances unless they paid a fee to the union. This would alleviate, in the view of some NLRB members, the “free-rider problem” with RTW laws.